Labour Court Database __________________________________________________________________________________ File Number: CD89232 Case Number: AD8931 Section / Act: S13(9) Parties: ADELPHI CARLTON LIMITED - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Appeal, by the Union against a Rights Commissioner's Recommendation concerning a promotional appointment to the position of Chief Projection Operator in the Adelphi Cinema.
Recommendation:
5. Having considered the submissions made by the parties, the
Court upholds the Rights Commissioner's recommendation.
The Court so decides.
Division: Mr Fitzgerald Mr Shiel Mr O'Murchu
Text of Document__________________________________________________________________
CD89232 APPEAL DECISION NO. AD3189
INDUSTRIAL RELATIONS ACTS 1946 TO 1976
SECTION 13(9)
PARTIES: ADELPHI CARLTON LIMITED
(REPRESENTED BY THE FEDERATED UNION OF EMPLOYERS)
AND
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Appeal, by the Union against a Rights Commissioner's
Recommendation concerning a promotional appointment to the
position of Chief Projection Operator in the Adelphi Cinema.
BACKGROUND:
2. The Company, in February, 1989, appointed the Chief Operator
at the Carlton Cinema (Worker A) to the position of Chief Operator
at the Adelphi Cinema which had become vacant. The appointment
was to take effect from 10th March, 1989. The second operator at
the Adelphi (Worker B) was offered the position of Chief Operator
at the Carlton. Worker B declined this offer on the basis that he
should have been offered the position of Chief Operator at the
Adelphi. The Union, on 23rd February, 1989 wrote to the Company
on behalf of Worker B, disputing the appointment of Worker A. The
Company replied, stating that it had complied with long
established custom and practice. The current Company/Union
Agreement does not contain the term "in house basis" but does
refer to adherence to custom and practice in relation to matters
not referred to by the Agreement. The Union issued strike notice
on 9th March, 1989. The matter was the subject of a Labour Court
conciliation conference and was subsequently referred to a Rights
Commissioner who investigated the dispute on 22nd March, 1989. On
30th March, the Rights Commissioner issued the following
recommendation.
"
I am anxious that the claimant is given the
opportunity to show his abilities as a Chief Operator
at the Adelphi. I must however uphold the right of
management to exercise their managerial prerogatives
in a reasonable way in a situation where the matter
in dispute does not appear to be covered by the
present Agreement.
Accordingly, I recommend that the Company's appointee
remains in the post from 31/3/89 until the 29/6/89.
The Claimant should then take over from 30/6/89 until
the 28/9/89. The Company should then make a final
decision on the post and the new post holder should
commence work permanently on Friday 29/9/89. During
this period each man will cover the Carlton duty
whilst the other covers the Adelphi duty.
All other promotions which might arise from this
exercise will be deemed to be temporary.
The failed candidate for the disputed position may
revert to his previous post if he so wishes. In the
case of the claimant he may also exercise his right
to permanently hold the Carlton post.
The parties should enter into discussions to clear up
this grey area not presently specifically covered by
written agreement. The question of the seniority of
a horizontally promoted person seems to me to need
clarification. In the event of a failure to agree
the assistance of the Labour Court should be sought
to finalise these related matters."
The Union, on 4th April, 1989, appealed this recommendation to the
Labour Court under Section 13(9) of the Industrial Relations Act,
1969. The Court heard the appeal on 7th April, 1989.
UNION'S ARGUMENTS:
3. 1. The Union considers that the Rights Commissioner did not
investigate the issues central to the dispute but took a
position in relation to the "right" of management to promote.
2. Management has attempted to unilaterally change long
established custom and practice in relation to promotion.
There is a promotional "hierarchy" within the two cinemas,
whereby people move up through the ranks of apprentice,
fourth, third, second and Chief.
3. The two cinemas operate as separate and independent units
for every purpose and the staff are not interchangeable. The
service of staff in each house remains the property of that
house. Transfers from one house to the other would totally
upset the promotional and service conditions of staff in both
houses. Such transfers would be contrary to custom and
practice.
4. If it is management's intention to integrate the two
houses, then this should be directly proposed. Management
should not attempt to use opportunities as they arise to bring
integration into being.
COMPANY'S ARGUMENTS:
4. 1. Worker A is the best qualified and most experienced person
for the job of chief operator in the Adelphi.
2. The term "in house basis" is not included in the present
Company/Union Agreement. The agreement states that custom and
practice shall prevail in matters not specifically referred to
in the agreement. In this case the Company has adhered to
custom and practice in that staff have previously transferred
from one house to another within the Company.
3. Management has the right to decide who should fill the
position of Chief Operator in the Adelphi.
4. The old TCA/ITGWU agreement states:-
"...In the event of any vacancy occurring such shall
be filled by a member of Dublin No. 7 Branch of
the ITGWU, where the applicant is suitable. It
is agreed that promotion shall be granted in
accordance with the length of service given by
employees provided such employees shall in the
opinion of the management be fit for the new
position."
Management considers that this agreement should stand. Worker
A has 10 years experience as Chief Operator while Worker B has
no such experience.
5. The Company has at all times acted in good faith and as a
reasonable employer. The Company seeks to have the Rights
Commissioner's Recommendation upheld.
DECISION:
5. Having considered the submissions made by the parties, the
Court upholds the Rights Commissioner's recommendation.
The Court so decides.
~
Signed on behalf of the Labour Court,
Nicholas Fitzgerald
___13th___April,___1989. _______________________
A. K. / M. F. Deputy Chairman