Labour Court Database __________________________________________________________________________________ File Number: CD90160 Case Number: AD9022 Section / Act: S13(9) Parties: DUBLIN PORT AND DOCKS BOARD - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against Rights Commissioner's Recommendation No. CW 319/89.
Recommendation:
5. Having considered the submissions from both parties, the
Court is satisfied that the Rights Commissioner's recommendation
is not unreasonable in the circumstances and should be accepted by
the parties.
The Court accordingly upholds the Rights Commissioner's
recommendation.
The Court so decides.
Division: Ms Owens Mr McHenry Mr O'Murchu
Text of Document__________________________________________________________________
CD90160 APPEAL DECISION NO. AD2290
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: DUBLIN PORT AND DOCKS BOARD
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation No. CW 319/89.
BACKGROUND:
2. The worker concerned has been employed by the Board as a
general operative since 1977. He is attached to the Blacksmith
Shop in the Engineering Department. In June, 1989, a vacancy
arose in the Crane Maintenance Shop which is also in the
Engineering Department. The position was filled by the transfer
of a worker from the Boiler Shop. The claimant disputed this and
claimed that he should have been transferred as he was the more
senior of the two. The Board rejected his claim. Following the
failure of local discussions, the Union referred the matter to a
Rights Commissioner for investigation and recommendation. The
Rights Commissioner, having investigated the dispute on the 1st
February, 1990, issued the following recommendation on the 9th
February:-
"I recommend that the Board takes note of any locations to
which the worker wishes to move and when a vacancy
occurs, gives favourable consideration to his wish,
subject to suitability and seniority, and that the Union
accepts that there was no unfair selection last June."
This recommendation was unacceptable to the Union and was appealed
to the Labour Court under Section 13(9) of the Industrial
Relations Act, 1969. The Court heard the appeal on the 24th
April, 1990.
UNION'S ARGUMENTS:
3. 1. On numerous occasions in recent years the worker concerned
has requested a transfer to another section but has never been
moved. Management has argued that when the vacancy in
question arose, the senior technical supervisor was already in
receipt of a written request by the other worker for a
transfer from the Boiler Shop to any other location. However,
the appellant had acquainted the Board of his wish to transfer
and this should have been taken into account.
2. Under various productivity agreements, the Board has the
right to move general workers from one Shop to another.
However, in practice most general workers would remain
attached to a particular Shop on a long-term basis. It is
perfectly reasonable for employees to expect that, when a
position becomes available, they should have the opportunity
of being considered for that post.
3. Although all the positions are filled by general
operatives on the same basic rate, many of the posts carry
certain allowances and opportunity for greater overtime
earnings etc. It is therefore reasonable that those with more
service be given greater consideration.
4. As the Board cannot, and has not, argued that the worker
concerned was not suitable, he should have been transferred in
preference to the other worker, on the basis of overall
seniority.
BOARD'S ARGUMENTS:
4. 1. When the vacancy in question arose, the senior technical
supervisor was aware that the other worker had submitted a
written request over a year previously for a transfer from the
Boiler Shop to any other location. A similar written request
had not been submitted by the appellant. While the Board
acknowledges that it was aware that he had been seeking a
transfer, any request made was always for a transfer to a
specific location and not a general request as was the case
with the other worker.
2. Any request for a transfer will be seriously considered
when an opportunity arises but the transfer will not
necessarily be to the location or position sought by the
employee. While the Board will make every effort to
facilitate employees in this regard, it is entitled, in making
its decision, to take account of factors other than the
convenience of employees.
4. 3. Under the various productivity agreements the Board has
the right to transfer employees from one Shop to another at
the discretion of the appropriate supervisor. In making his
decision the supervisor took various factors into account,
including seniority and decided that, on this occasion, the
other worker should be transferred. In such circumstances the
Board cannot accept that the judgement of the supervisor,
whose responsibility it is to organise the efficient running
of the service, can be substituted by the opinion of a third
party.
4. There is no agreed procedure for making such transfers and
the contention that transfers should be effected on the basis
of seniority is totally rejected. Seniority is only one
factor to be considered and only in a situation where all
other factors are equal would seniority apply.
DECISION:
5. Having considered the submissions from both parties, the
Court is satisfied that the Rights Commissioner's recommendation
is not unreasonable in the circumstances and should be accepted by
the parties.
The Court accordingly upholds the Rights Commissioner's
recommendation.
The Court so decides.
~
Signed on behalf of the Labour Court,
Evelyn Owens
___5th____June,___1990. ___________________
D. H. / M. F. Deputy Chairman