Labour Court Database __________________________________________________________________________________ File Number: CD92481 Case Number: AD92220 Section / Act: S13(9) Parties: CEREBRAL PALSY IRELAND - and - IMPACT |
Appeal by Cerebral Palsy Ireland against Rights Commissioner's Recommendation (No. ST237/92) regarding the filling of the post of Cleaning Supervisor at the Sandymount Clinic.
Recommendation:
The Court finds the claimant had grounds to conclude that she
would have been appointed to the position of Evening Cleaning
Supervisor. Accordingly, the Court considers that she should be
appointed to that post.
The Association and the Union should immediately draw up an
agreement on the procedures for future appointments.
The Rights Commissioner's recommendation should be amended
accordingly.
The Court so decides.
Division: MrMcGrath Mr Brennan Mr Rorke
Text of Document__________________________________________________________________
CD92481 APPEAL DECISION NO. AD22092
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9) INDUSTRIAL RELATIONS ACT, 1969
PARTIES: CEREBRAL PALSY IRELAND
AND
IMPACT
SUBJECT:
1. Appeal by Cerebral Palsy Ireland against Rights
Commissioner's Recommendation (No. ST237/92) regarding the filling
of the post of Cleaning Supervisor at the Sandymount Clinic.
BACKGROUND:
2. 1. The claimant was employed by the National Association
for Cerebral Palsy (Cerebral Palsy Ireland) in 1985 as a
cleaner. In June, 1992, the evening Cleaning Supervisor
submitted notice of her resignation and the Company then
advertised for a replacement supervisor internally and
externally through the national press and FAS.
2. The Union claims, that, without any agreement or
conciliation, the Company have broken tradition and practice
by advertising the position of Supervisor (cleaner). They
claim that the post was always filled on the basis of
seniority and, therefore, the claimant should be appointed to
the position.
3. The Company do not agree that a precedent exists and
maintain that they are entitled to advertise, internally
and/or externally, for a Cleaning Supervisor.
4. The matter was investigated by a Rights Commissioner on
the 8th July, 1992 and he issued his recommendation on the
20th July, 1992. He found, that the post to be filled was
not an enlarged post, that internal competition is always
used, in the first instance, to fill promotions locally in
the Public Service and the fact that an agreement exists
between the Company and another Union representing
professional workers had no relevance in this case. He
recommended that the claimant be confirmed in the post of
Supervisor with immediate effect and that she carry out the
duties assigned under the job specification date 26/6/92.
5. The Rights Commissioner's recommendation was rejected by
the Company who appealed it to the Labour Court on the 5th
August, 1992. The Court heard the appeal on the 28th
September, 1992.
COMPANY'S ARGUMENTS:
3. 1. The Rights Commissioner is not correct on a number of
findings in his recommendation.
(a) "The post to be filled is not an enlarged post".
The Rights Commissioner is incorrect in saying that the
position is not enlarged or enriched.
The new position involves responsibility for the supervision
of the cleaning of a larger area. A new workshop (7,000 Sq.
ft.) and staff canteen were not the responsibility of the
prevsious supervisor.
The previous Supervisor supervised two members of staff; the
supervisor to be appointed will supervise at least three.
It is intended that a greater proportion of the supervisor's
time will be spent on supervision and less on actual cleaning
duties. Whilst the hours of work remain the same, it is the
breakdown on how these hours will be spent which is being
changed.
It is management's intention that the rate of pay will remain
at the current level, at least initially. If, however, there
is evidence of an improvement in the standards of cleaning in
the clinic, this matter could be considered.
(b) "Internal competition is always used in the first
instance to fill promotions locally in the Public Service."
The Company do not accept that confined competition is always
used in the Public Service as the practice is mixed. Quite
apart from this, Cerebral Palsy Ireland is a voluntary body
and is not part of the Public Service.
(c) "The fact that an agreement stands, between the employer
and another Union representing professional workers, that all
posts will be filled by open competition, had no relevance in
this case."
The predominant recruitment policy, for permanent positions
within the organisation, is that they be advertised and
appointments are made on merit after interview.
In the same week that the vacancy for an evening Cleaning
Supervisor was advertised, Cerebral Palsy Ireland advertised
two other promotional positions, one for the Sandymount
Clinic and the other for the Bray Clinic.
Failure to advertise the position of evening Cleaning
Supervisor could lead to grievances arising. It is current
practice to advertise in order to give staff an opportunity
to compete for promotion.
The Company do not accept the contention that there is a
right to a senior post based on seniority alone, although,
seniority is taken into consideration. The stated aim of the
organisation is to provide the best service possible on
behalf of its clients. The appointment of the best staff
possible, through open competition, is essential towards
achieving that aim.
The Company do accept that this particular position was never
advertised externally before. On two occasions there was no
advertisement because the position was being filled on a
temporary basis pending the return to work of the holder of
the post who was on long-term sick leave. On the third
occasion, in 1986, a worker was offered the position on the
basis of her performance. She had the same length of service
as another cleaner when she was offered the position.
The precedent for selection of the Cleaning Supervisor is not
for the most senior person to be appointed as the Union has
suggested. A practice of appointing the most senior person
to any post, (in this instance, as Cleaning Supervisor) at
Cerebral Palsy Ireland, is unworkable as it implies that
every cleaner recruited has to meet the criteria set for the
supervisory position.
(d)"I recommend that the claimant is confirmed in the post of
Supervisor with immediate effect."
The Company maintain that it is impossible for the claimant
to be confirmed in a position which she has never held and
does not currently hold.
The current situation, with regard to the cleaning staff, is
that there is no Supervisor. This is a temporary situation
which was agreed with IMPACT when they raised this grievance
in the first place. The union requested that management
delay appointing a Cleaning Supervisor until this claim was
processed to a Rights Commissioner. Subsequently, management
decided to appeal the recommendation and have not so far
appointed anyone to the position of Supervisor. Cerebral
Palsy Ireland honoured its commitment not to appoint anyone
to this position, on this occasion, while the matter is being
processed.
UNION'S ARGUMENTS:
4. 1. Up to now, the post of Supervisor (cleaning) was filled
by appointing the most senior cleaner employed in Sandymount
and the Union have evidence of this. Therefore, by custom
and practice the claimant is entitled to the promotion.
2. The claimant, in the absence of the Senior cleaner, has
always taken full responsibility for the Senior, both in
terms of holding the keys of the buildings and ensuring that
the work was completed and there has not been a complaint
about her work.
3. The Company suggest that the job has changed but if it
has changed, nobody informed any of the staff or the Union
and the rate of pay is the same as previously.
4. The claimant has seven years service, without blemish,
and has willingly taken on any responsibility given to her.
DECISION:
The Court finds the claimant had grounds to conclude that she
would have been appointed to the position of Evening Cleaning
Supervisor. Accordingly, the Court considers that she should be
appointed to that post.
The Association and the Union should immediately draw up an
agreement on the procedures for future appointments.
The Rights Commissioner's recommendation should be amended
accordingly.
The Court so decides.
~
Signed on behalf of the Labour Court
5th November, 1992 Tom McGrath
P.O.C./M.H. -------------------------------------
Deputy Chairman.