Labour Court Database __________________________________________________________________________________ File Number: CD92256 Case Number: AD92171 Section / Act: S13(9) Parties: DUN LAOGHAIRE CORPORATION - and - ELECTRICAL TRADES UNION |
An appeal against Rights' Commissioner's recommendation No. 10/92 regarding the appointment of a worker to a permanent position as housing inspector with the Corporation.
Recommendation:
5. The Court has considered the submissions made by the parties.
In the first place it is of the opinion that maintaining an
employee in a post on a temporary basis for a period of thirteen
years is to say the least excessive. In the second place, having
regard to the employee's record in the job during that period the
Court finds it difficult to envisage what qualification could have
outweighed this fact which resulted in his failure as a candidate
for the job.
It is the Court's view that, however inadvertently, a serious
injustice was done to the employee concerned and that in the
circumstances the Rights Commissioner's Recommendation does not
fully meet the case. It is the view of the Court that the
employee concerned be re-appointed immediately to the position of
Acting Housing Inspector on a permanent basis and that the
compensation awarded be reduced to #1500. The Court so decides.
Division: Mr O'Connell Mr McHenry Mr Rorke
Text of Document__________________________________________________________________
CD92256 APPEAL DECISION NO. AD17192
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: DUN LAOGHAIRE CORPORATION
and
ELECTRICAL TRADES UNION
SUBJECT:
1. An appeal against Rights' Commissioner's recommendation No.
10/92 regarding the appointment of a worker to a permanent
position as housing inspector with the Corporation.
BACKGROUND:
2. 1. The worker began work with the Corporation as an
electrician on 11th April, 1973. On 6th June, 1978, after a
competition, he was appointed to the position of acting
housing inspector. The worker remained in the acting position
by consecutive extensions of his temporary contract, every 6
months, until 31st October, 1991.
2. In September, 1991, the Corporation decided to make the
worker's post permanent and on 12th September, 1991,
advertised to fill 3 positions of housing inspector (including
the worker's acting position). The worker was not one of the
successful applicants recommended for appointment to a
permanent position. As a result the worker reverted to his
substantive position of electrician on 1st November, 1991.
3. The worker made a claim on the Corporation for appointment
as a housing inspector and the claim was the subject of a
Rights Commissioner's investigation on 9th March, 1992. The
recommendation as set out below was issued on 16th March,
1992.
"This is an extraordinary case in which the weight of
argument is balanced in favour of the claimant. The
worker undoubtedly had a firm expectation of permanent
appointment to a position he had filled on a temporary
basis for thirteen years.
The Corporation's representative acknowledged that there
had been no complaints whatsoever about the worker's
stewardship during this period and therefore it can only
be assumed that the Interview Board has scant regard to
the worker's lengthy period of temporary service in the
post.
I have seriously considered the Union's contention that
the claimant should be permanised as an Inspector in
any event but am of the view that such a course would
only create further repercussive difficulties.
Consequently I recommend that the worker be paid a lump
sum of #2,000 compensation in respect of his loss of
earnings arising from his reduction in rank, and that
he be given favourable consideration by his employer for
promotion to an Inspectorate position, at the first
available opportunity. I further recommend in the light
of this dispute that both the Corporation and the Union
should mutually review procedures on temporary occupancy
and subsequent filling of promotional posts of this
nature".
The worker was named in the recommendation.
4. The Rights' Commissioner's recommendation was appealed to
the Labour Court by the Union, by letter dated 15th April,
1992, under Section 13(9) of the Industrial Relations Act,
1969. A Labour Court investigation took place on 12th May,
1992.
UNION'S ARGUMENTS:
3. 1. The worker filled the position of housing inspector in an
acting capacity for 13 years. There were no complaints about
the worker's ability during all this time. As a result, the
worker had a firm expectation of a permanent appointment.
However, the interview board did not give proper consideration
to the worker's lengthy service in the post.
2. The lengthy embargo on recruitment to the public service,
which began in 1980, is regarded as the only reason why the
worker was not made permanent in the past. The worker saw no
reason to object to the competition for his position as he saw
the arrangements as a formal mechanism to make his position
permanent. This expectation was based on what the
Corporation's personnel section had said to him on a number of
occasions (details supplied).
3. The Union has not been able to secure an explanation as to
why the worker was unsuccessful in securing the advertised
post. If the worker was made permanent, there would be no
repercussive difficulties (details supplied). In the
circumstances, the Corporation should retain the worker in his
acting position with a view to seeking the necessary
authorisation for another inspectorate position. The Union is
appealing against the lump sum element of the Rights
Commissioner's recommendation.
CORPORATION'S ARGUMENTS:
4. 1. The Corporation filled the permanent position of housing
inspector following a competition as per normal custom and
practice. It is unfortunate for the worker that he was
unsuccessful in obtaining a permanent position. He did,
however, have the opportunity to justify himself at interview.
2. The Corporation rejects the statement by the Union that
the Corporation's personnel section gave the worker the
impression that he would be permanently appointed. The worker
is aware of the procedures for making permanent appointments
within the Corporation. The worker accepted these procedures
without complaint and no representations were received until
the results of the competition were announced.
3. The Corporation accepts the Rights Commissioner's
recommendation as fair and reasonable in the circumstances.
DECISION:
5. The Court has considered the submissions made by the parties.
In the first place it is of the opinion that maintaining an
employee in a post on a temporary basis for a period of thirteen
years is to say the least excessive. In the second place, having
regard to the employee's record in the job during that period the
Court finds it difficult to envisage what qualification could have
outweighed this fact which resulted in his failure as a candidate
for the job.
It is the Court's view that, however inadvertently, a serious
injustice was done to the employee concerned and that in the
circumstances the Rights Commissioner's Recommendation does not
fully meet the case. It is the view of the Court that the
employee concerned be re-appointed immediately to the position of
Acting Housing Inspector on a permanent basis and that the
compensation awarded be reduced to #1500. The Court so decides.
~
Signed on behalf of the Labour Court
John O'Connell
_______________________
23rd June, 1992. Deputy Chairman
J.F./J.C.