Labour Court Database __________________________________________________________________________________ File Number: CD93106 Case Number: AD9318 Section / Act: S13(9) Parties: MARKS AND SPENCER (IRELAND) LIMITED - and - IRISH DISTRIBUTIVE AND ADMINISTRATIVE TRADE UNION |
Appeal against Rights Commissioner's Recommendation No. BC443/93.
Recommendation:
5. The Court does not find grounds to amend the Rights
Commissioner's Recommendation and accordingly upholds it and
rejects the appeal of the Union.
Division: MrMcGrath Mr Keogh Mr O'Murchu
Text of Document__________________________________________________________________
CD93106 APPEAL DECISION NO. AD1893
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: MARKS AND SPENCER (IRELAND) LIMITED
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION)
and
IRISH DISTRIBUTIVE AND ADMINISTRATIVE TRADE UNION
SUBJECT:
1. Appeal against Rights Commissioner's Recommendation No.
BC443/93.
BACKGROUND:
2. 1. A vacancy for a temporary early-morning controller in the
Food Section of the Company's Mary Street store arose in July,
1992. The position was advertised internally and 3
applicants applied for the post. Of the 3 applicants who
applied, only one was interviewed as the other 2 had absence
levels of greater than the Company's acceptance level of 4%.
2. One of the workers who was not interviewed claimed that
she was unfairly treated by not being interviewed. The claim
was submitted to the Rights Commissioners Service for
investigation and recommendation. The Rights Commissioner
investigated the dispute on 18th January, 1993 and the
following recommendation issued on 27th January, 1993:-
"In the light of the above I must find that the claim
made by the Trade Union on behalf of the worker for
compensation must fail".
3. The recommendation was appealed to the Labour Court under
Section 13(9) of the Industrial Relations Act, 1969 by the
Union by letter dated 8th February, 1993. A Labour Court
investigation took place on 10th March, 1993 (the earliest
date suitable).
UNION'S ARGUMENTS:
3. 1. The internal advertisement for the filling of the vacancy
attracted 3 replies, of which only one applicant was
interviewed. The successful applicant had 4 weeks service
with the Company and had a perfect attendance record.
2. The claimant had been working with the Company since 10th
September, 1979. The worker's absence level was above the 4%
limit acceptable to the Company and she was not interviewed.
The Company had never spoken to the worker about her absences
until the interviews were being held.
3. The Union contends that the interview is the correct forum
for hearing a worker's reasons for selection. The fact that
only one applicant was interviewed makes a mockery of the
entire process. The Company has now accepted, as did the
Rights Commissioner, that the system is flawed and all
applicants for positions will be interviewed in future. As
the promotional outlet has been filled, compensation is the
only course open to the worker.
COMPANY'S ARGUMENTS:
4. 1. The successful applicant was required to manage a team of
10 workers, starting at 7.00 a.m. The Company considered it
imperative that the worker who filled the vacant port should
have an acceptable attendance record.
2. The Company's policy on absenteeism is well known and this
factor is an important consideration in selection for
promotion. All workers are aware of the Company's policy in
recording and controlling absenteeism. The successful
applicant for the position had a perfect attendance record
with the Company and with his previous employer.
3. The worker was informed that her unsuccessful application
would not prejudice any future promotional opportunities. If
the worker had been offered an interview she would not have
been selected for the position because of her absences being
in excess of 4%. In August, 1992, following representation by
the Union, the Company agreed to interview all applicants for
future competitions. The Company reserves the right to select
the most suitable candidate and to determine criteria to be
fulfilled when vacancies arise.
DECISION:
5. The Court does not find grounds to amend the Rights
Commissioner's Recommendation and accordingly upholds it and
rejects the appeal of the Union.
~
Signed on behalf of the Labour Court
Tom McGrath
_________________
26th March, 1993. Deputy Chairman
J.F./J.C.