Labour Court Database __________________________________________________________________________________ File Number: CD91546 Case Number: AD92117 Section / Act: S13(9) Parties: AER LINGUS - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against Rights Commissioner's recommendation concerning the application by a worker for a staff vacancy in the Technical Stores Section.
Recommendation:
5. The Court has considered all aspects of the case as put
forward by the parties in their oral and written submissions.
The Court finds that, at the time the claimant was being placed on
the panel for the job of Technical Storeperson Operative "C",
negotiations were taking place which within one month would
preclude the claimant from securing such a position except in
exceptional circumstances. The claimant was not appraised of this
situation which took place in August, 1990 one month approximately
after the panel was formed, nor was he advised that the panel was
closed at that time.
Further the Court finds he was not advised of the situation until
after he had made enquiries and had made application for a job
advertised under an agreement he was not aware of and which had
the effect of virtually precluding him from attaining a job to
which he aspired and which but for the agreement made locally he
would have been eligible to apply. Given the circumstances of the
case and in the knowledge that the claimant in 1990 had expressed
the hope that he could aspire to a job as Technical Storeperson,
the Court fully understands the claimant's sense of grievance.
The Court accepts that the placing of his name on a panel did not
constitute in itself a job offer but given the procedures which
applied at that time it did create the expectation that he would
have the opportunity to attain promotion to the position he
desired.
It is not within the capability of the Court to appoint the
claimant to a position in T.E.A.M. The Court can only seek to
redress the grievance by awarding compensation to the claimant.
The Court considers the claimant should be awarded compensation in
the order of £2,000 in full and final settlement of this dispute,
and the recommendation of the Rights Commissioner should be
amended accordingly.
The Court would refer the Company to the comments of the Rights
Commissioner and in the interest of avoiding a future area of
conflict recommend that the Company and T.E.A.M. seek to reconcile
the inconsistencies in their agreements.
The Court so decides.
Division: MrMcGrath Mr Brennan Mr Walsh
Text of Document__________________________________________________________________
CD91546 APPEAL DECISION NO. AD11792
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: AER LINGUS
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
recommendation concerning the application by a worker for a staff
vacancy in the Technical Stores Section.
BACKGROUND:
2. The worker concerned applied for the position of Technical
Storeperson in June, 1991. In July, 1991, he was informed by the
Company that his name was placed on a panel from which vacancies
for Technical Storepersons would be filled. On 11th January,
1991, the worker on inquiring from the Personnel Section in
respect of the panel was informed that no vacancies existed for
Technical Storepersons and that the panel would close within a few
weeks. On 14th January, 1991, a staff vacancy notice for
Technical Storeperson was posted on several notice boards. The
worker contacted the Personnel Section seeking an explanation as
to why the vacancy was advertised when the panel formed in July,
1990, was still open. Within 4 hours of the worker's query the
notice was removed from all notice boards, the Company claiming an
error was made in advertising the post. On 18th January, 1991,
the worker was informed that the panel was closed. On 26th
February, 1991, a vacancy for Technical Storeperson on a T.E.A.M.
staff vacancy notice was advertised. In August, 1990 unknown to
the worker an agreement was reached locally between management of
T.E.A.M., a new subsidiary of the Company and S.I.P.T.U. which
precluded the worker from gaining access to the position of
Technical Storeperson. The worker claims the Company breached
agreed procedures in regards to the filling of vacancies from the
panel. The Company refuted the claim and the matter was referred
to a Rights Commissioner for investigation and recommendation.
The Rights Commissioner on 24th September, 1991, recommended as
follows:-
"I recommend that the Company offers and the Union accepts the
sum of £1000 in full and final settlement of this dispute".
The Union rejected the Rights Commissioner's recommendation and
appealed it to the Labour Court. The Court heard the appeal on
19th November, 1991, under Section 13(9) of the Industrial
Relations Act, 1969.
UNION'S ARGUMENTS:
3. 1. The worker had a real expectation of a job as Technical
Storeperson when he was placed on a panel with three other
workers.
2. Panels are normally set-up by the Company when it is
envisaged that other vacancies would arise.
3. Panels are frequently extended where the Company forecasts
additional vacancies.
4. Since the panel was closed on 18th January, 1991, three
vacancies for Technical Storepersons have been filled.
COMPANY'S ARGUMENTS:
4. 1. The placing of an individual on a panel does not
constitute a job offer.
2. The Company is left with a problem that is not of its
making nor is the solution in its hands.
3. The Company accepts that it is regrettable that the panel
was not closed when the agreement between the management of
T.E.A.M. and S.I.P.T.U. was reached in August, 1990 and the
worker advised accordingly.
DECISION:
5. The Court has considered all aspects of the case as put
forward by the parties in their oral and written submissions.
The Court finds that, at the time the claimant was being placed on
the panel for the job of Technical Storeperson Operative "C",
negotiations were taking place which within one month would
preclude the claimant from securing such a position except in
exceptional circumstances. The claimant was not appraised of this
situation which took place in August, 1990 one month approximately
after the panel was formed, nor was he advised that the panel was
closed at that time.
Further the Court finds he was not advised of the situation until
after he had made enquiries and had made application for a job
advertised under an agreement he was not aware of and which had
the effect of virtually precluding him from attaining a job to
which he aspired and which but for the agreement made locally he
would have been eligible to apply. Given the circumstances of the
case and in the knowledge that the claimant in 1990 had expressed
the hope that he could aspire to a job as Technical Storeperson,
the Court fully understands the claimant's sense of grievance.
The Court accepts that the placing of his name on a panel did not
constitute in itself a job offer but given the procedures which
applied at that time it did create the expectation that he would
have the opportunity to attain promotion to the position he
desired.
It is not within the capability of the Court to appoint the
claimant to a position in T.E.A.M. The Court can only seek to
redress the grievance by awarding compensation to the claimant.
The Court considers the claimant should be awarded compensation in
the order of £2,000 in full and final settlement of this dispute,
and the recommendation of the Rights Commissioner should be
amended accordingly.
The Court would refer the Company to the comments of the Rights
Commissioner and in the interest of avoiding a future area of
conflict recommend that the Company and T.E.A.M. seek to reconcile
the inconsistencies in their agreements.
The Court so decides.
~
Signed on behalf of the Labour Court
Tom McGrath
_______________________
7th January, 1992 Deputy Chairman.
F.B./J.C.