Labour Court Database __________________________________________________________________________________ File Number: CD92254 Case Number: AD92166 Section / Act: S13(9) Parties: PENNEYS - and - IRISH DISTRIBUTIVE AND ADMINISTRATIVE TRADE UNION |
Appeal by the Union against Rights Commissioner's recommendation S.T. 474/91 concerning a worker's application for permanent employment.
Recommendation:
5. The Court has considered the oral and written submissions of
the parties. It is the view of the Court that the worker
concerned should be appointed to the next suitable permanent
vacancy. Her employment in a permanent capacity should be subject
to a probationary period of six months and on the clear
understanding that there is an obligation on permanent staff to be
in full attendance at working times and that attendance will be
one of the factors considered during the probationary period.
The Court so decides.
Division: MrMcGrath Mr Keogh Mr Walsh
Text of Document__________________________________________________________________
CD92254 APPEAL DECISION NO. AD16692
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: PENNEYS
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
IRISH DISTRIBUTIVE AND ADMINISTRATIVE TRADE UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
recommendation S.T. 474/91 concerning a worker's application for
permanent employment.
BACKGROUND:
2. The worker concerned has been employed in the Company's Artane
branch as a part-time sales assistant since 1986. The Union
claims that the worker should be appointed to a full-time position
forthwith on the grounds that she works full time hours.
Management rejected the Union's claim because of the workers poor
attendance record (details supplied to the Court). The issue was
referred to a Rights Commissioner for investigation and
recommendation. On the 12th March, 1992 the Rights Commissioner
issued his recommendation as follows:
"I strongly recommend that the Company puts this matter to bed
by sympathetically considering her application for the next
available post in Artane".
On the 21st April, 1992 the Union appealed the Rights
Commissioner's recommendation to the Labour Court under Section
13(9) of the Industrial Relations Act, 1969. The Court heard the
appeal on the 28th May, 1992.
UNION'S ARGUMENTS:
3. 1. In 1991 the Labour Court made a recommendation dealing
with the question of additional full-time posts in Artane
(L.C.R. 13325 refers). The Court also recommended that the
worker concerned should be given sympathetic consideration by
the Company in her application for a full-time post. The
Rights Commissioner endorsed this position in his
recommendation. Despite this the Union has not been able to
get a commitment from the Company regarding the worker's
application for a full-time position. The Union is not
seeking the creation of a new full-time post. The worker is
working full-time hours for the past four years, without the
benefits of full-time status such as job security and
full-time sick pay benefits. The Union asks the Court to
recommend that the worker's job title be changed to that of a
full-time employee.
COMPANY'S ARGUMENTS:
4. 1. Following L.C.R. 13325 a full-time employee was
facilitated in moving to a part-time position. Interviews
were held for the vacant post among six applicants employed in
Artane. The Company appointed the most suitable candidate to
the position. The appointment was made in accordance with
long standing procedures and attendance record was one of the
most important factors in the selection process. The worker
concerned was not successful in her application and her
general absence record was a significant factor in her not
obtaining this position. The Company must be able to rely on
a full-time worker's ability to attend work on a regular
basis.
2. The Company recently referred the worker concerned to a
doctor for assessment to determine if the Company could
reasonably offer her a permanent post. The doctor's opinion
confirmed that the worker is not fit to be considered for a
permanent position and would be unable to give the Company
continuous employment because of her underlying condition for
the foreseeable future. It is unreasonable to expect the
Company to offer her a permanent post at this time.
Management is prepared to keep the worker's case under review.
Such a review would take account of her medical condition.
DECISION:
5. The Court has considered the oral and written submissions of
the parties. It is the view of the Court that the worker
concerned should be appointed to the next suitable permanent
vacancy. Her employment in a permanent capacity should be subject
to a probationary period of six months and on the clear
understanding that there is an obligation on permanent staff to be
in full attendance at working times and that attendance will be
one of the factors considered during the probationary period.
The Court so decides.
~
Signed on behalf of the Labour Court
Tom McGrath
_________________________
9th June, 1992. Deputy Chairman
T.O'D./J.C.