Labour Court Database __________________________________________________________________________________ File Number: CD9033 Case Number: AD9020 Section / Act: S13(9) Parties: SECURICOR (IRELAND) LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against Rights Commissioner's Recommendation ST 368/89.
Recommendation:
5. The Court is of the view that the appellant has not been
treated unfairly and for this reason the Court rejects the appeal
and so decides.
Division: Ms Owens Mr McHenry Mr O'Murchu
Text of Document__________________________________________________________________
CD9033 APPEAL DECISION NO. AD2090
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: SECURICOR (IRELAND) LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation ST 368/89.
BACKGROUND:
2. The worker concerned has 11 years' service with the Company as
a static guard. His contract of employment obliges him to work 40
hours over a seven day or night period. He has been working
nights on a regular basis but has also done day relief work. Some
time ago a vacancy arose for a position on full-time day work.
The claimant applied but was unsuccessful. The Union queried
Management's decision arguing that the Company was aware that he
was, for a variety of reasons, anxious to work days (details
supplied to the Court) and that all things being equal, his
seniority should have given him first preference (he had the
longest service of the three applicants for the job). The Company
rejected the Union's claim. As no agreement could be reached at a
series of local level meetings, the Union referred the matter to a
Rights Commissioner for investigation and recommendation.
Following an investigation of the dispute on the 5th December,
1989 in Galway, the Rights Commissioner issued the following
recommendation on the 20th December:-
"The claimant has grave family difficulties which will not
diminish and deserves our sympathy. However, there is no
way in which I can reasonably interfere with a fundamental
management perogative. An employer, in the security
industry in particular, cannot always explain fully, the
reasons for certain decisions to individuals or the Union.
Disclosure may entail divulgence of the business of the
client company on occasions. The Company, in my view, has
taken all reasonable steps within the parameters above, to
ameliorate the claimant's difficulties by the introduction
of the present rosters.
I therefore recommend that he accepts the present position
whilst noting the Company's stated intention to
sympathetically consider him for future day work should it
become available".
This recommendation was rejected by the Union and was appealed to
the Labour Court under Section 13(9) of the Industrial Relations
Act, 1969 on the 5th January, 1990. The Court heard the appeal in
Galway on the 13th February, 1990.
UNION'S ARGUMENTS:
3. 1. Management was aware that the claimant was anxious for
any opportunity to go on days. When he queried why he was not
offered the day job that arose he was initially told by the
Depot Manager that the position was a temporary one.
Reference was also made to his suitability. This cannot be in
question as he was a clean disciplinary record.
2. Static Guard duty is essentially the same during the day
as it is at night, the possible exception being that there
might be a greater volume of people going through check points
during the day.
3. The worker has a letter of recommendation from his doctor
that changing to day work would improve his health. He also
has a domestic situation involving a sick child which requires
attention at night. This information was given to the Company
not as criteria for insisting on him being given day work but
as information which the Union felt Management should have.
4. Of the three applicants for the job, the claimant had the
greatest service. All things being equal therefore, his
seniority should have given him first preference. The Company
has the right if it so wishes to change the man currently on
days and put the claimant in that position. Furthermore, the
Company should have been more compassionate to the worker on
his personal problems with his own health and his sick child.
5. The Union accepts that the worker has contractual
obligations to be rostered for 40 hours day or night. The
Union is not seeking to impair Management's right to manage
but is requesting that when the Company has scope for
detailing workers it should have regard to a worker's personal
request for a change in working conditions. The Rights
Commissioner in his recommendation suggested that to recommend
the claimant's placement on days would interfere with a
fundamental Management perogative. This statement is totally
inaccurate. All that is being asked for is that where a job
arises the Company should give consideration to those with
long service.
3. 6. The Rights Commissioner did not deal with the main Union
argument that all things being equal (and they were in this
case) seniority should have been the determining factor.
COMPANY'S ARGUMENTS:
4. 1. The allocation of the worker's duties and rosters are
governed by his contract of employment which states:-
'You may be required to do either indoor or outdoor work, the
nature and place of such work can vary at different times
and,
'your normal working week will be 40 hours to be worked over a
seven day or night period. Your rosters will be notified to
you by your departmental manager.'
It is clear from these extracts that the Company has the right
to roster an employee as the nature of the work dictates. The
Union has accepted at previous meetings that the Company has
this right.
2. It is a well established practice within the Security
Industry that static guards are rostered as required, in
accordance with their contract of employment. Also, all
static guards have a liability to work either day or night as
notified by the Company. In consideration of this
flexibility, static guards receive an unsocial hours allowance
of #11 per week.
3. It is also accepted by all sides that Securicor's static
guard division operates in a very competitive environment. To
survive, the Company must respond to the demands generated by
its customers' requirements. To meet the clients' ever
changing needs, duties and rosters are amended and adjusted
sometimes at very short notice, indeed as contracts are won
and lost duties and rosters are extended or reduced as
required. The claimant is fully aware that flexibility of
hours of work is a basic condition of employment for staff in
Securicor's static guard division.
4. In selecting static guards for a particular duty the
Company considers the suitability of the guard for the job and
the wishes and requirements of the client. Securicor could
not appoint a static guard to a duty on the basis of seniority
alone as this would remove:-
(a) the Company's right to ensure that the most suitable
guard is placed on a duty,
and
(b) would ignore the client wishes in the matter.
If the client is not satisfied with the person appointed by
Securicor then he has the right, in a competitive market, to
take his business elsewhere. Accordingly, appointments based
on seniority are not operative in the Security Industry in
general and in Securicor in particular.
4. 5. In relation to the claimant's personal problems the
Company has accommodated him as much as possible, given the
limited assignments it has in Galway. In fact the Thermo King
assignment is the only static guard assignment Securicor has
in Galway. To help alleviate his personal problems it was
agreed that he would have his own personal roster which would
maximise the number of day shifts. He has worked this roster
over the last few months.
DECISION:
5. The Court is of the view that the appellant has not been
treated unfairly and for this reason the Court rejects the appeal
and so decides.
~
Signed on behalf of the Labour Court,
Evelyn Owens
___29th___March,___1990. ___________________
D. H. / M. F. Deputy Chairman