Labour Court Database __________________________________________________________________________________ File Number: CD91367 Case Number: LCR13400 Section / Act: S26(1) Parties: A. O. SMITH LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Dispute concerning a promotion/transfer grievance of one worker.
Recommendation:
5. Having considered the submissions from the parties the Court
is satisfied that the Company's position is fair and reasonable
and should be upheld.
The Court does not accordingly recommend in favour of the Union's
claim.
Division: Ms Owens Mr Collins Mr Walsh
Text of Document__________________________________________________________________
CD91367 RECOMMENDATION NO. LCR13400
THE LABOUR COURT
INDUSTRIAL RELATIONS ACTS 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT 1990
PARTIES: A. O. SMITH LIMITED
(Represented by the Federation of Irish Employers)
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Dispute concerning a promotion/transfer grievance of one
worker.
BACKGROUND:
2. The worker concerned commenced employment with the Company in
October, 1988. He has applied for promotion on a number of
occasions since 1989 but was not successful until August 1991.
The worker alleges that a request for a transfer to another
position was refused during this time. He also claims that his
job was re-evaluated on three occasions (on request) but in all
cases the re-evaluation did not yield an upgrade. The worker
sought an explanation from management as to why he was
unsuccessful in both his applications for promotion and transfer.
The Union claims that no explanation was given to the worker. It
invoked the grievance procedure under Clause 20 of the
Company/Union Agreement because it claims the worker was not
treated fairly. The issue was referred to the Conciliation
Service of the Labour Court on 1st October, 1990. Conciliation
conferences were held on the 21st January and 25th March, 1991
under the auspices of the Labour Relations Commission but no
agreement was reached. The dispute was referred to the Labour
Court by the Labour Relations Commission on the 17th July, 1991.
A Court hearing was held on the 27th August, 1991. At the hearing
the Company advised the Union that the worker has accepted a job
at a higher grade, following an application under Clause 20 of the
Company/Union Agreement.
UNION'S ARGUMENTS:
3. 1. There are two dimensions to the dispute; (1) the
situation in relation to the application of the worker concerned
for promotion, and (2) the refusal of his application for transfer
to other more rewarding positions.
2. PROMOTION ISSUE:
Clause 20 of the Company/Union Labour Agreement sets down the
procedure and service qualifications necessary for employees
to be eligible to apply for promotion. It also enshrines a
commitment to endeavour where possible to promote from
within the Company. The Union accepts that when the worker
sought to apply for promotion in January, 1989, he did not
qualify to do so as he was still within his probation.
However, while accepting this it should be noted that
subsequently a colleague of the worker was allowed to apply
for promotion, and secured the promotion within the fourth
month of his probationary period. Given this situation the
worker should not have been denied the right to apply for
promotion in May, 1989, when he had completed his
probationary period, which is by agreement 6 months.
3. TRANSFER ISSUE:
Clause 21 of the Labour Agreement sets down the employees'
obligation to interchange between jobs as deemed necessary.
By implication all staff must be interchangeable, or at least
available for training on all jobs to facilitate
interchangeability. There must be a corresponding obligation
on the Employer to facilitate where possible employees'
requests for transfer to other jobs. It is not enough to
ignore requests for transfer on the grounds that the worker
is not suitable. A worker cannot acquire the knowledge of
other jobs to facilitate interchangeability if he is not
trained, either by way of a training programme or transfers.
4. The worker is aware that the only way of progressing
within a company is by acquiring optimum experience in all
jobs and displaying a real interest in all facets of the
Company. He is a married man with a wife and family and
financial obligations. This obviously motivates his
ambitions with the Company. In both his promotion and
transfer requests the worker would have improved his
financial position considerably had he been successful. By
being denied both on a number of occasions he has lost a
considerable amount of money. The worker has accepted
promotion now offered by the Company but feels that he should
be compensated for his failure to secure promotion since
June, 1990.
COMPANY'S ARGUMENTS:
4. 1. The Company has not in the past and is under no
obligation to provide reasons to applicants who compete for
posts as to why they were unsuccessful. This is provided for
in Clause 5 and Clause 20 of the Labour Agreement. The
Company does not necessarily interview all persons who apply
for promotions. Interviews are already carried out with
applicants who are actively being considered for a particular
job. To do otherwise would undermine the selection
procedure. Clause 20 lays down the criteria for employees
wishing to be considered for promotion. However it in no way
prohibits the Company from selecting someone else. Indeed
this was the method by which the worker concerned was
recruited in the first place.
2. Following representations made on the worker's behalf
the Company investigated his job under the evaluation
procedure in place. The results of the evaluation were
justified. The Company was under no obligation to undertake
the job evaluation. The Company tried to assist the worker
in his efforts to increase his earning power by increased
overtime and by an offer of transfer to another job in the
same grade with greater bonus earning potential. The offer
was rejected by the worker, even though a trial period was
proposed. The Company has treated the worker equitably under
the circumstances.
3. The worker has been offered and has accepted a job at a
higher grade following his application for promotion in
accordance with Clause 20 of the Agreement.
RECOMMENDATION:
5. Having considered the submissions from the parties the Court
is satisfied that the Company's position is fair and reasonable
and should be upheld.
The Court does not accordingly recommend in favour of the Union's
claim.
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Signed on behalf of the Labour Court
13th September, 1991 Evelyn Owens
T.O'D / M.O'C. _______________
Deputy Chairman