Labour Court Database __________________________________________________________________________________ File Number: CD90218 Case Number: AD9026 Section / Act: S13(9) Parties: IRISH ALE BREWERIES LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against a Rights Commissioner's recommendation B.C. 294/89 concerning promotional opportunities for a worker.
Recommendation:
5. Having considered the submissions from the parties the Court
is of the view that it would not be justified in altering the
carefully worded recommendation of the Rights Commissioner.
The Court accordingly does not uphold the appeal and so decides.
Division: Ms Owens Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD90218 APPEAL DECISION NO. AD2690
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: IRISH ALE BREWERIES LIMITED
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against a Rights Commissioner's
recommendation B.C. 294/89 concerning promotional opportunities
for a worker.
BACKGROUND:
2. The Company is a holding Company for four operating companies
including Irish Ale Brewery (Sales) which operates a distribution
depot in Ballyfermot. There are 61 people employed at the depot
which includes 3 foreman positions and 1 stand-by foreman
position. On 14th June, 1989 one of the three foremen retired.
The worker concerned applied for the vacancy but was not
successful. The stand-by foreman was appointed to the foreman
position and the worker concerned applied for the consequential
stand-by foreman vacancy but was not successful. The Union claims
that under custom and practice, and under longstanding
Company/Union agreements, vacancies for foreman positions are
filled on the basis of seniority. As the worker concerned was the
most senior applicant he should have been appointed to fill the
foreman vacancy. The Company rejected the claim and the matter
was referred to a Rights Commissioner who investigated the dispute
on 8th February, 1990 and issued the following recommendation on
20th February, 1990:-
"RECOMMENDATION:-
In the light of the above I must express my conviction that I
do not believe that Management has acted unfairly in its
treatment to the worker. However, I do urge and recommend
that it appoint the worker to the next position as Stand-by
Foreman. The worker's rank among the Stand-by Foreman should
be the most junior and that any promotion from this rank to a
permanent position of Foreman should be made taking into
account the suitability of the worker in particular his
behaviour for the period three years prior to his placement
on the panel of Stand-by Foreman coupled with the period from
his placement on the panel of Stand-by Foreman up to the time
he is being considered for a Foremans position."
(*The worker was named in the Rights Commissioner's
Recommendation).
The Union, on 25th April, 1990 appealed this recommendation to the
Labour Court under Section 13(9) of the Industrial Relations Act,
1969. The Court heard the appeal on 12th June, 1990.
UNION'S ARGUMENTS:
3. 1. There has been in existence in the Ballyfermot depot a
longstanding agreement between the Union and the Company in
relation to the filling of promotional posts. It has been
custom and practice in relation to the filling of foreman
posts that these posts are filled on the basis of seniority
i.e. the most senior person in the job applies for and gets
the post. The worker concerned was the most senior of the
applicants for the foreman vacancy but was refused the post by
the Company. When the stand-by foreman vacancy became
available the worker applied but was again refused by the
Company. The Union is contesting both of these decisions by
the Company on the grounds of the existing agreement and also
on custom and practice.
2. The promotional opportunities at the depot are few and far
between and seniority is the normal criteria on which a
decision is made. The Company may claim that the reason the
worker did not secure the positions was because of
disciplinary problems but other people in the Company and in
the depot have been given promotion despite having had
problems with the Company in the disciplinary area. It is
unfair and discriminatory for the Company to deny the worker
promotion on this basis.
3. The worker has suffered on a financial basis by being
denied promotional opportunities. He is being discriminated
against as over the years foreman vacancies have been filled
exclusively on a seniority basis. The Rights Commissioner's
recommendation implicitly recognises the validity of the
Union's argument by inserting the worker into the stand-by
foreman panel. The Union is appealing against the
recommendation as the qualifications attaching to it are not
acceptable.
COMPANY'S ARGUMENTS:
4. 1. The criteria for appointment to a supervisory position in
the Company is seniority, tempered by suitability. The worker
concerned was found unsuitable for promotion to the foreman
position due to his poor disciplinary record over the years of
his employment and his general attitude to authority. The
Company does not accept that vacancies for foreman positions
in the past were filled on the basis of seniority alone.
2. The worker has a most unsatisfactory disciplinary record,
the nature of which shows a serious disregard for the Company,
its management, and its customers. He has in the past placed
unofficial one-man pickets on the depot and breached Company
procedures. His refusals to comply with management's
instructions have resulted in poor customer service in a
highly competitive market, as well as additional Company
costs.
3. The Company accepts the Rights Commissioner's
recommendation but holds the view that the worker is
unsuitable to hold a position in the Company as responsible as
that of depot foreman.
DECISION:
5. Having considered the submissions from the parties the Court
is of the view that it would not be justified in altering the
carefully worded recommendation of the Rights Commissioner.
The Court accordingly does not uphold the appeal and so decides.
~
Signed on behalf of the Labour Court
Evelyn Owens
_________________________
19th June, 1990. Deputy Chairman
A.S./J.C.