Labour Court Database __________________________________________________________________________________ File Number: CD89717 Case Number: AD8984 Section / Act: S13(9) Parties: P.E. O'BRIEN & SONS LIMITED - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Appeal by the Union against Rights Commissioners Recommendation No. C.W. 185/89 concerning the filling of a vacancy for an assembler.
Recommendation:
9. The Court finds the Company initially breached their agreement
regarding the filling of vacancies and were less than considerate
of their employee in the manner in which they sought to fill the
vacancy for order assembler.
The Court notes the Company eventually used the agreed procedures
to fill the vacancy.
The Court, notwithstanding the above, does not find substantial
grounds for altering the Recommendation of the Rights
Commissioner.
The Court so decides.
Division: MrMcGrath Mr McHenry Mr Devine
Text of Document__________________________________________________________________
CD89717 APPEAL DECISION NO. AD8489
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: P.E. O'BRIEN & SONS LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioners
Recommendation No. C.W. 185/89 concerning the filling of a vacancy
for an assembler.
BACKGROUND:
2. The Company is involved in the wholesale distribution of hand
tools and employs 25 people. Seven people are employed in the
warehouse - two order assemblers, three packers, one goods inwards
and a van driver. All positions are paid at the same rate.
Flexibility exists so that the number of assemblers or packers can
be adjusted to reflect current workloads.
3. In March, 1989 a vacancy for an assembler arose. The Union
maintains that the Company approached two packers and offered them
the position. The first one turned it down as he was on temporary
driving duties at the time. The Company then approached the
second packer and offered him the position. The Union approached
the Company on behalf of the claimant (who is also a packer) to
inform them of his interest in the position. The claimant was on
sick leave at the time and only found out about the job through a
third party. The Company informed the Union that it would hold
off filling the vacancy until the claimant returned from sick
leave and that it would advertise the vacancy and hold interviews.
This was done and the position was offered to the packer who was
on temporary driving duties who this time accepted it.
4. The Company denies that it approached the workers concerned
about the position. It was the workers themselves who approached
the Company. The Company considered the applications and offered
the position to the worker on temporary driving duties who
informed the Company that he wished to remain on driving duties
until the regular driver returned. The Company subsequently
became aware of the claimants interest in the position and agreed
to hold off filling the vacancy until his return from sick leave.
Interviews were held and the position was offered to and accepted
by the worker on temporary driving duties.
5. The claimant referred the matter to a Rights Commissioner for
investigation and recommendation as he felt victimised. The
Rights Commissioner investigated the matter and on the 27th
September, 1989 he issued the following recommendation:-
"I recommend that the claimant accept that he was not
victimised, and that the Company retains on record his desire
to obtain an order assembly job and gives the weight to his
service and record when the next vacancy occurs."
The claimant was referred to by name in the Rights Commissioner's
recommendation.
6. The Union appealed the recommendation to the Labour Court
under Section 13(9) of the Industrial Relations Act, 1969. The
Court heard the appeal on the 7th November, 1989.
UNION'S ARGUMENTS:
7. 1. The way the Company went about filling this position was
wrong from the start. The position should have been
advertised and interviews held in accordance with the
agreement on the filling of vacancies. The Company in
offering the position to the workers concerned (one of whom
was on probation at the time) left the claimant feeling
victimised and aggrieved that he will always remain at packer
level.
2. The interviews which were held were merely an attempt by
the Company to try and redeem itself from what they themselves
knew to be a bad situation.
3. The claimant has over the last number of years worked as
an order assembler at times, and there has never been any
complaints by the Company regarding his work in this area.
the Union can see no good reason why the claimant, who has
long service with the Company, was not given an opportunity to
take up this position on a full time basis.
COMPANY'S ARGUMENTS:
8. 1. It is managements job to decide who should be appointed to
any vacancy. Promotion has always been based on merit.
2. The claimant has only marginally longer service than the
person appointed. However the latter has greater product
knowledge and assembly experience from two previous
employments.
3. The Company did not at any time offer the job to the
worker who was on probation.
4. The claimant was never told that he was unsuitable for the
job. The Company considered the three applications before
deciding on the most suitable. Only one candidate could get
the job.
DECISION:
9. The Court finds the Company initially breached their agreement
regarding the filling of vacancies and were less than considerate
of their employee in the manner in which they sought to fill the
vacancy for order assembler.
The Court notes the Company eventually used the agreed procedures
to fill the vacancy.
The Court, notwithstanding the above, does not find substantial
grounds for altering the Recommendation of the Rights
Commissioner.
The Court so decides.
~
Signed on behalf of the Labour Court
Tom McGrath
________________________
30th November, 1989. Deputy Chairman
M.D./J.C.