Labour Court Database __________________________________________________________________________________ File Number: REE903 Case Number: EET901 Section / Act: S19(5)EE Parties: DONEGAL SHIRT COMPANY - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Dispute concerning compliance with Section 19(5).
Recommendation:
5. The Company's case rests on the assumption that the claimant
was aware, before she left on maternity leave, that the two
positions had been filled, although no formal announcement of this
was made at any stage nor had any formal notice of the vacancies
been given in the first place. The Employer bases this case on
the belief that the information was informally disseminated by
word of mouth, a belief which in the view of the Court does not
sustain the Company's contention that the position on the filling
of the vacancies was public knowledge in July.
In the light of the claimant's absence from August to November,
during which time the appointee to the first position took up
training it is reasonable to assume that she became aware of this
immediately on her return to work in November but the Court also
accepts that her first certain knowledge of the filling of the
second vacancy could only have been when the second appointee
began training in December.
Given the recorded course of events which ensued the Court takes
the view that reasonable cause has been shown for exemption under
the terms of Section 19(5) of the Employment Equality Act. The
Court recommends that the parties proceed to deal with the issue
accordingly.
Division: Mr O'Connell Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
REE903 EET190
EMPLOYMENT EQUALITY ACT, 1977
SECTION 19(5)
PARTIES: DONEGAL SHIRT COMPANY
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Dispute concerning compliance with Section 19(5).
BACKGROUND:
2. The Company manufactures fashion shirts for the domestic and
export markets and employs 139 workers. In 1989 two employees
were appointed to the positions of cutters in the cutting room
moving from Job Class 5 positions to Job Class 2 positions. The
worker concerned holds a Job Class 4 position. In February, 1990
she claimed that she was denied access to the opportunity for
promotion to the post of cutter. On the 17th August, 1990 the
Union referred the dispute to the Labour Court claiming that the
Company was in breach of Section 3(6) of the Employment Equality
Act, 1977 for its failure to afford the worker concerned access to
opportunity for promtion. However the Company and the Union are
in disagreement as to the actual date of the alleged act of
discrimination. The Union claims that it first occurred in
December, 1989, and was notified to the Company in February, 1990.
The Company maintains that the alleged act of discrimination
occurred in July, 1989, and that the Union was in breach of
Section 19(5) of the Employment Equality Act, 1977, in not
referring the case within six months from the date of the first
occurrence of the alleged act of discrimination. The Court
investigated the dispute in Letterkenny on the 28th November,
1990.
UNION'S ARGUMENTS:
3. 1. The actual act of discrimination against the worker
concerned occurred in December, 1989, and when the Union
approached the Company seeking discussions on the issue,
Management requested more time to consider the dispute.
Subsequently meetings were held at local level in February,
April, May, and July, 1990. The Union felt that it was
unreasonable to refer the dispute to the Court while local
negotiations were in progress. When the Company formally
rejected the Union's claim by letter in July, 1990 the issue
was referred to the Court by the Union.
2. The Union rejects the Company's statement that the alleged
act of discrimination occurred in July, 1989. The
appointments were advertised in July, 1989 but were not
advertised publicly and therefore was not common knowledge
throughout the plant. The worker concerned was on maternity
leave from August to November, 1989 during which time one of
the workers appointed took up training. She only became aware
that the vacancies had been filled in December, 1989, when the
second worker appointed commenced training.
COMPANY'S ARGUMENTS:
4. 1. The alleged act of discrimination occurred in July, 1989
and not in December, 1989 as stated by the Union.
2. The first reference in any shape or form to the question
of the worker being denied access to promotion was in
February, 1990, some seven months after the event. This was
in the form of a general query rather than any statement of
intent to pursue the claim under the Employment Equality Act,
1977.
3. The first formal identification of options to resolve the
worker's grievance came in July, 1990, including that of a
claim under the Employment Equality Act, 1977. This was a
full year after the alleged act.
4. The initial referral of the claim to the Court was by way
of a general letter to the Court in August, 1990. The
specific details of the claim, i.e. that the Company acted in
breach of Section 3(6) of the Employment Equality Act, 1977,
were only first notified to the Court in September, 1990.
This was fourteen months after the alleged act.
DETERMINATION:
5. The Company's case rests on the assumption that the claimant
was aware, before she left on maternity leave, that the two
positions had been filled, although no formal announcement of this
was made at any stage nor had any formal notice of the vacancies
been given in the first place. The Employer bases this case on
the belief that the information was informally disseminated by
word of mouth, a belief which in the view of the Court does not
sustain the Company's contention that the position on the filling
of the vacancies was public knowledge in July.
In the light of the claimant's absence from August to November,
during which time the appointee to the first position took up
training it is reasonable to assume that she became aware of this
immediately on her return to work in November but the Court also
accepts that her first certain knowledge of the filling of the
second vacancy could only have been when the second appointee
began training in December.
Given the recorded course of events which ensued the Court takes
the view that reasonable cause has been shown for exemption under
the terms of Section 19(5) of the Employment Equality Act. The
Court recommends that the parties proceed to deal with the issue
accordingly.
~
Signed on behalf of the Labour Court
John O'Connell
_________________________
18th December, 1990. Deputy Chairman
T.O'D./J.C.