Labour Court Database __________________________________________________________________________________ File Number: CD91268 Case Number: AD9159 Section / Act: S13(9) Parties: DUBLIN AIRPORT RESTAURANTS LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Company against Rights Commissioner's recommendation No. B.C. 329/90 concerning a worker's alleged denial of promotional opportunities and unfair discrimination against her.
Recommendation:
In the light of the above I recommend that on the next
occasion where a vacancy for a supervisor arises with the
food-fair then the worker should be appointed to this position
since she is by far the most senior person available.
Following this appointment should any difficulties arise that
these should be discussed between the Company and the worker's
Trade Union.
(The worker was named in the recommendation).
The Company on 17th May, 1991 appealed the recommendation to the
Labour Court under Section 13(9) of the Industrial Relations Act,
1969. The Court heard the appeal on 10th July, 1991.
UNION'S ARGUMENTS:
3. 1. The worker concerned has a good working relationship with
the Company. She is a competent and loyal employee. The
Company has not treated her fairly and has denied her an
opportunity for promotion even on a trial basis.
2. The worker has never indicated that she would refuse to
change her hours of work if promoted. As she was never
offered promotion the question never arose. The worker
accepts that the Company's conditions of employment
appropriate to supervisors would apply to her if she is
appointed as a supervisor.
3. The Company claims that its policy is to treat all
employees fairly. In this case the Company has not applied
its own policy and has not given any reasons why the worker
has been unsuccessful in her applications for promotion. The
Rights Commissioner's recommendation is fair and should be
accepted by the Company.
COMPANY'S ARGUMENTS:
4. 1. The stated policy of the Company is to fill positions by
appointing the best candidate following competition. The
Rights Commissioner's recommendation goes against this policy
in that it fails to uphold the Company's right to select staff
for promotion.
2. Staff who had retained the conditions of employment they
had with Aer Rianta accepted the Company's conditions of
service upon promotion. The worker has refused to alter her
hours of work and this has seriously impaired her promotion
chances. This information was not made available to the
Rights Commissioner when he investigated the dispute.
DECISION:
5. Having considered the submissions of the parties the Court
considers that in the light of the claimant's acceptance, that the
supervisors' attendance hours would be applicable to her in the
supervisory position the recommendation of the Rights Commissioner
should be implemented.
The Court so decides.
Division: MrMcGrath Mr Keogh Mr Devine
Text of Document__________________________________________________________________
CD91268 APPEAL DECISION NO. AD5991
INDUSTRIAL RELATIONS ACT, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: DUBLIN AIRPORT RESTAURANTS LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
recommendation No. B.C. 329/90 concerning a worker's alleged
denial of promotional opportunities and unfair discrimination
against her.
BACKGROUND:
2. In 1979 the worker concerned commenced employment with Aer
Rianta as a cashier in the catering section. In 1983 the catering
facilities were franchised to the Company. Staff who moved from
Aer Rianta to the Company retained all their conditions of
service. The worker retained her position as a cashier with the
following hours of work:-
3-Shift System
7 a.m. to 1.30 p.m.
10.30 a.m. to 5.00 p.m.
1.30 p.m. to 9.00 p.m.
(36 hour week).
Supervisors, including those formerly employed by Aer Rianta, work
a 2-shift system:-
2-Shift System
6 a.m. to 3.00 p.m.
3 p.m. to 12.00 a.m.
From 1985 onwards the worker applied for a number of promotional
positions but was unsuccessful. The Union claims that the worker
has been unfairly discriminated against and has been denied
promotional opportunities. The Company rejects the claim. The
dispute was referred to a Rights Commissioner who investigated the
matter on 8th April, 1991 and issued the following recommendation
on 30th April, 1991:-
RECOMMENDATION
In the light of the above I recommend that on the next
occasion where a vacancy for a supervisor arises with the
food-fair then the worker should be appointed to this position
since she is by far the most senior person available.
Following this appointment should any difficulties arise that
these should be discussed between the Company and the worker's
Trade Union.
(The worker was named in the recommendation).
The Company on 17th May, 1991 appealed the recommendation to the
Labour Court under Section 13(9) of the Industrial Relations Act,
1969. The Court heard the appeal on 10th July, 1991.
UNION'S ARGUMENTS:
3. 1. The worker concerned has a good working relationship with
the Company. She is a competent and loyal employee. The
Company has not treated her fairly and has denied her an
opportunity for promotion even on a trial basis.
2. The worker has never indicated that she would refuse to
change her hours of work if promoted. As she was never
offered promotion the question never arose. The worker
accepts that the Company's conditions of employment
appropriate to supervisors would apply to her if she is
appointed as a supervisor.
3. The Company claims that its policy is to treat all
employees fairly. In this case the Company has not applied
its own policy and has not given any reasons why the worker
has been unsuccessful in her applications for promotion. The
Rights Commissioner's recommendation is fair and should be
accepted by the Company.
COMPANY'S ARGUMENTS:
4. 1. The stated policy of the Company is to fill positions by
appointing the best candidate following competition. The
Rights Commissioner's recommendation goes against this policy
in that it fails to uphold the Company's right to select staff
for promotion.
2. Staff who had retained the conditions of employment they
had with Aer Rianta accepted the Company's conditions of
service upon promotion. The worker has refused to alter her
hours of work and this has seriously impaired her promotion
chances. This information was not made available to the
Rights Commissioner when he investigated the dispute.
DECISION:
5. Having considered the submissions of the parties the Court
considers that in the light of the claimant's acceptance, that the
supervisors' attendance hours would be applicable to her in the
supervisory position the recommendation of the Rights Commissioner
should be implemented.
The Court so decides.
~
Signed on behalf of the Labour Court
Tom McGrath
__________________________
22nd July, 1991 Deputy Chairman.
A.S./J.C.