Labour Court Database __________________________________________________________________________________ File Number: CD91198 Case Number: AD9146 Section / Act: S13(9) Parties: B & I LINE - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Company against Rights Commissioner's Recommendation No. C.W.29/91 regarding the non-selection of a docker from the casual list.
Recommendation:
5. The Court having fully considered the oral and written
submissions of the parties does not find grounds to alter the
findings of the Rights Commissioner. Accordingly the Court
rejects the appeal of the Company.
The Court so decides.
Division: MrMcGrath Mr McHenry Mr Rorke
Text of Document__________________________________________________________________
CD91198 APPEAL DECISION NO. AD4691
THE LABOUR COURT
INDUSTRIAL RELATIONS ACTS 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT 1969
PARTIES: B & I LINE
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation No. C.W.29/91 regarding the non-selection of a
docker from the casual list.
BACKGROUND:
2. The dock worker concerned was on the casual list (list"B")
for employment within the Dockers' Section. This casual list was
used only in the event of permanent dockers not being available.
In 1989 agreement was reached between the parties to reduce the
"B" list from 21 to 14 workers. The selection of the 14 workers
was done by way of interview, medical examination, etc. The
worker concerned was not among the 14 successful candidates
selected. The Union claimed that he was unfairly treated and
referred the issue to a Rights Commissioner for investigation on
the 5th March, 1991. On the 12th March, 1991 the Rights
Commissioner issued his recommendation as follows:
"I recommend subject to a satisfactory medical clearance, that
the worker is included on the new B list. If there is a
conflict between the opinions of the worker's doctor and that
of the Company then an agreed third medical opinion is
sought".
(The worker was named in the Rights Commissioner's
recommendation).
The Company rejected the Rights Commissioner's Recommendation and
on the 10th April, 1991 appealed it to the Labour Court under
Section 13(9) of the Industrial Relations Act, 1969. A Court
hearing was held on the 21st May, 1991.
UNION'S ARGUMENTS:
3. 1. It was agreed that selection for the reduced casual list
of 14-15 dockers would be achieved following interviews,
medicals, tugmaster training and general assessment. Where
possible, preference would be given to the senior workers on
the list. In July 1989 the Company advised the Union as to
the reasons why 7 workers were unsuccessful. In the case of
the worker concerned Management stated it was primarily on
the basis of age and health.
2. The worker concerned disputed this statement and as his
own doctor had subsequently given him the all clear he
believed that he should have been selected. The Union raised
the issue with Management on a number of occasions and
pointed out that the question of the worker's medical
condition was a bit of a "red herring" and as he was number
10 on the list he should have been given proper
consideration. It appeared to the Union that age was perhaps
the only criteria against the worker and this was
unreasonable grounds for non-selection.
3. The worker concerned has been employed as a casual in
the cross-channel section for many years even prior to 1982.
He has been confirmed as being in excellent health by his own
doctor. The Union is not challenging the Company's right to
select candidates for permanent employment but in this
situation of casual work it is most unreasonable that the
worker concerned who has worked for so long on the docks
should be overlooked and his whole future prospects seriously
restricted.
COMPANY'S ARGUMENTS:
4. 1. Selection of staff is a fundamental Management right,
and goes to the very core of the employer/employee
relationship. The Company must have sole discretion in
matters of recruitment/promotions. In this particular
instance it was inevitable that all of those presenting
themselves for appointment could not be successful as the
whole purpose of the exercise agreed with the Union in
January 1989 was to reduce the number of men so employed.
Consequently, the possibility of a number of people being
disappointed was inevitable.
2. The worker concerned appears to be claiming that the
reason for his non selection was on medical grounds only.
This is not the situation, nor was this ever represented to
him. He along with all the other candidates undertook a
selection process which included interview and medical
examination in order to assess general suitability. Having
regard to all relevant criteria, 14 men were selected who in
the opinion of the interviewers were more suitable than the
worker concerned for employment as casual dockers. The
Company could not tolerate a situation where individuals who
apply for a job and are unsuccessful have a claim to an
appointment. This would render the whole selection process
meaningless. The Company finds it strange that the Union
having freely negotiated and agreed new arrangements are now
challenging these arrangements because one individual was not
selected.
3. The Rights Commissioner in Recommendation No CW29/91 of
the 12th March, 1991 appears to be implying that the reason
for the worker's non selection was on medical grounds only.
This is not the position, and the Company has always made it
clear, including its arguments to the Rights Commissioner,
that the 14 Dockers selected were generally more suitable
than the worker concerned.
The Labour Court has in the past upheld appeals against
Rights Commissioner's Recommendations (AD 8289 two cases);
upheld Rights Commissioner's Recommendations where the issue
in question has been the right of Management to exercise
their managerial prerogative in selecting staff (details
supplied).
DECISION:
5. The Court having fully considered the oral and written
submissions of the parties does not find grounds to alter the
findings of the Rights Commissioner. Accordingly the Court
rejects the appeal of the Company.
The Court so decides.
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Signed on behalf of the Labour Court
6th June, 1991 Tom McGrath
T.O'D / M.O'C. _______________
Deputy Chairman