AD8860

Subject:
Appeal by the Union on behalf of a worker against Rights Commissioner's Recommendation No. BC 78/88.

Recommendation:
"In the light of the above I recommend that the worker
concerned along with the other internal applicants for that
position should be re-interviewed. The interview panel to
consist of an independent chairman whom I will nominate and
whose expenses would be covered by the Company and another
person to be nominated by the Company. Before the
interviewing process has commenced the two members of the
interviewing panel should achieve a consensus as to the
requirements necessary to satisfactorily fill the vacant
position. Following the interviewing the panel should seek
unanimity in the choice of the successful candidate. In the
event of failure to achieve this unanimity the matter can
then be referred to me for a specific recommendation."

The worker was referred to by name in the Rights
Commissioner's recommendation.

8. The Union rejected the recommendation and appealed it to the
Labour Court under Section 13(9) of the Industrial Relations Act,
1969. The Court heard the appeal on 22nd September, 1988.

UNION'S ARGUMENTS:
9. 1. The reasons put forward by the Company for refusing to
appoint the worker to the advertised position are totally
unacceptable and offensive.

2. The Company broke the grievance procedure by encouraging
the other four candidates to agree to re-interview while the
worker was processing a grievance under the procedure. This
represents a deliberate effort to sabotage his claim by
generating the maximum level of difficulty surrounding his
preferred solution.

3. None of the other candidates raised a grievance at the
time and to date no grievance has been lodged by any of the
other candidates. The worker therefore, is the only
individual who has a live issue. Any other pleadings by the
Company are contrived situations brought about at their behest
and without support on the factory floor.

4. Because of the level of opposition to the worker's claim
and because of the Management activity surrounding their
entire handling of this case, it is our belief that it is
impossible for him to get a fair interview in the Company.



5. Accordingly, the Union seeks to have the worker appointed
to the vacancy on a trial basis for six (6) months and to
protect him against any further prejudice during the trial
period. The appointment of an independent observer is sought
to review his performance in the post and to guarantee an
impartial assessment of his suitability for permanent
appointment.


COMPANY'S ARGUMENTS:
10. 1. The Company rejects the arguments advanced by the worker.
Essentially he was deemed unsuitable for the position by
management on the basis of their assessment of his
suitability, initiative, etc.


2. Regrettably, issues arose which did not reflect the policy
of the Company at the highest level. Those issues served to
confuse the matter.


3. The Company has always had the right to make appointments
and this right was recognised at conciliation and at the
Rights Commissioner's Hearing. This right is enshrined in an
agreed statement arising from conciliation in December, 1982
(details supplied to the Court).


4. Because of the unfortunate and special aspects of this
case, the Company was prepared to accept the Rights
Commissioner's recommendation to involve an independent
chairman in the appointment process. The Company was
satisfied that this would lend the necessary credibility to
the situation.


5. The Company has consistently rejected the Union's claim
that the worker should simply be given the position. To do so
would seriously undermine the Company's rights in the whole
area of appointments.


DECISION:
11. Having considered the submissions made by the parties the
Court has come to the conclusion that the terms of the Rights
Commissioner's recommendation offer the most equitable solution to
the problems arising in this case.

The Court therefore decides that the Rights Commissioner's
recommendation should stand.

Division: Mr O'Connell Mr Shiel Mr O'Murchu

Text of Document__________________________________________________________________

CD88567 APPEAL DECISION NO. AD6088

INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)


PARTIES: GILBEYS OF IRELAND LIMITED

and

FEDERATED WORKERS' UNION OF IRELAND

SUBJECT:
1. Appeal by the Union on behalf of a worker against Rights
Commissioner's Recommendation No. BC 78/88.

BACKGROUND:
2. In mid 1987 the Company advertised a vacancy for a fitter's
helper and held internal interviews for same. The worker
concerned and four others applied for the position and were
subsequently interviewed by the maintenance manager.

3. All of the applicants were informed that they had been
unsuccessful and would not be appointed to the position. Four of
the applicants accepted this, however, the worker concerned
decided to pursue the matter further.

4. On requesting the reasons for his failure he was given the
following reasons, (1) trade union activity, (2) knowledge of the
system (which was suggested would be conducive to malingering),
and (3) lack of initiative.

5. The Union rejected these reasons as inequitable and offensive
and without justification. A meeting with Senior Management was
held, following which the Company disassociated itself from the
remarks and stated that the sentiments expressed were against
Company policy. The Company proposed to re-interview all the
applicants for the vacancy.

6. This proposal was rejected by the Union and the matter was
referred the conciliation service of the Labour Court. At the
conciliation conference the Company proposed to re-interview the
candidates and suggested that an independent chairman be appointed
to the interview board to oversee the process. This was rejected
by the Union who sought a trial period of appointment for the
worker concerned.


7. The matter was then referred to a Rights Commissioner for
investigation and recommendation. Following an investigation held
on 21st April, 1988 the Rights Commissioner issued his
recommendation:-

"In the light of the above I recommend that the worker
concerned along with the other internal applicants for that
position should be re-interviewed. The interview panel to
consist of an independent chairman whom I will nominate and
whose expenses would be covered by the Company and another
person to be nominated by the Company. Before the
interviewing process has commenced the two members of the
interviewing panel should achieve a consensus as to the
requirements necessary to satisfactorily fill the vacant
position. Following the interviewing the panel should seek
unanimity in the choice of the successful candidate. In the
event of failure to achieve this unanimity the matter can
then be referred to me for a specific recommendation."

The worker was referred to by name in the Rights
Commissioner's recommendation.

8. The Union rejected the recommendation and appealed it to the
Labour Court under Section 13(9) of the Industrial Relations Act,
1969. The Court heard the appeal on 22nd September, 1988.

UNION'S ARGUMENTS:
9. 1. The reasons put forward by the Company for refusing to
appoint the worker to the advertised position are totally
unacceptable and offensive.

2. The Company broke the grievance procedure by encouraging
the other four candidates to agree to re-interview while the
worker was processing a grievance under the procedure. This
represents a deliberate effort to sabotage his claim by
generating the maximum level of difficulty surrounding his
preferred solution.

3. None of the other candidates raised a grievance at the
time and to date no grievance has been lodged by any of the
other candidates. The worker therefore, is the only
individual who has a live issue. Any other pleadings by the
Company are contrived situations brought about at their behest
and without support on the factory floor.

4. Because of the level of opposition to the worker's claim
and because of the Management activity surrounding their
entire handling of this case, it is our belief that it is
impossible for him to get a fair interview in the Company.



5. Accordingly, the Union seeks to have the worker appointed
to the vacancy on a trial basis for six (6) months and to
protect him against any further prejudice during the trial
period. The appointment of an independent observer is sought
to review his performance in the post and to guarantee an
impartial assessment of his suitability for permanent
appointment.


COMPANY'S ARGUMENTS:
10. 1. The Company rejects the arguments advanced by the worker.
Essentially he was deemed unsuitable for the position by
management on the basis of their assessment of his
suitability, initiative, etc.


2. Regrettably, issues arose which did not reflect the policy
of the Company at the highest level. Those issues served to
confuse the matter.


3. The Company has always had the right to make appointments
and this right was recognised at conciliation and at the
Rights Commissioner's Hearing. This right is enshrined in an
agreed statement arising from conciliation in December, 1982
(details supplied to the Court).


4. Because of the unfortunate and special aspects of this
case, the Company was prepared to accept the Rights
Commissioner's recommendation to involve an independent
chairman in the appointment process. The Company was
satisfied that this would lend the necessary credibility to
the situation.


5. The Company has consistently rejected the Union's claim
that the worker should simply be given the position. To do so
would seriously undermine the Company's rights in the whole
area of appointments.


DECISION:
11. Having considered the submissions made by the parties the
Court has come to the conclusion that the terms of the Rights
Commissioner's recommendation offer the most equitable solution to
the problems arising in this case.

The Court therefore decides that the Rights Commissioner's
recommendation should stand.
~

Signed on behalf of the Labour Court

John O'Connell
____________________________
10th October, 1988 Deputy Chairman.
M.D./J.C.