Labour Court Database __________________________________________________________________________________ File Number: CD91363 Case Number: AD9183 Section / Act: S13(9) Parties: UTRILLO LIMITED - and - UNION OF MOTOR TRADE, TECHNICAL AND INDUSTRIAL EMPLOYEES |
Appeal by Union against Rights Commissioners recommendation No. S.T. 72/91 and appeal by the Company against the amount recommended.
Recommendation:
100
Division: Mr O'Connell Mr Collins Mr Devine
Text of Document__________________________________________________________________
CD91363 APPEAL DECISION NO. AD8391
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: UTRILLO LIMITED
and
UNION OF MOTOR TRADE, TECHNICAL AND INDUSTRIAL EMPLOYEES
SUBJECT:
1. Appeal by Union against Rights Commissioners recommendation
No. S.T. 72/91 and appeal by the Company against the amount
recommended.
BACKGROUND:
2. Utrillo Limited are a property management company who supply
day time and night time porters to the Setanta Centre Building, at
Nassau Street, Dublin 2 and other premises throughout the city.
In January, 1991 a vacancy arose for the position of day porter.
The vacancy was filled by redeploying the Building Manager who was
due to retire at that time. The Union claim that the position
should have been offered to a night porter as such vacancies were
normally filled by night porters. The matter was referred to a
Rights Commissioner for investigation and recommendation. The
Rights Commissioner on 7th June, 1991 recommended as follows:-
"The employer has since the hearing rejected the claim for day
work rate for the claimant and was prepared without precedent
or prejudice to offer a nominal sum in compensation.
I am not in the circumstances of this case prepared to
recommend what I would consider a derisory sum. Instead I
recommend that the claimant receives £1,000 in full and final
settlement of all his claims. I further recommend that in
future all such posts should be advertised internally for
open competition."
The Rights Commissioner's recommendation was rejected by both
parties who appealed it to the Labour Court. The Labour Court
heard the appeal on 6th September, 1991.
COMPANY'S ARGUMENTS:
3. 1. Although the status of the Building Manager changed to
that of day porter, there was no change in the composition of
the day roster and in real terms no vacancy arose. The
Company should not be penalised in accommodating the Building
Manager who wished to remain in employment.
2. The claimant was employed as a night porter and the
alleged vacancy was that of a day porter. The Company did not
consider that any employee had been passed over in favour of
the former Building Manager.
3. The claimant would not be considered for the position of
day porter on the grounds of suitability as he tends to be
inflexible in carrying out his duties.
UNION'S ARGUMENTS:
4. 1. The Company acted in an unfair manner in not informing the
claimant of the vacancy of day porter. It was generally the
practice when a vacancy as day porter arose, that it was
offered to a night porter. He should have been offered the
job on the basis of seniority and suitability, and he had
indicated that he would welcome a transfer to day time
working.
2. The vacancy was the first to arise in recent years and the
claimant was anxious to cease night work as he had been beaten
up while on duty in Setanta House. The claimant was told by a
senior Company representative that there was no reason why he
would not be considered for the position of day porter if a
vacancy arose.
DECISION:
5. Having considered the submissions made by the parties the
Court is satisfied that the Rights Commissioner was mistaken in
his assessment of the amount of compensation due to the claimant
in the circumstances as described. The Court is of the opinion
that the recommendation should be amended to provide for a sum of
£100.
The Court so decides.
~
Signed on behalf of the Labour Court
John O'Connell
_________________________
30th September, 1991. Deputy Chairman
F.B./J.C.