Labour Court Database __________________________________________________________________________________ File Number: CD93619 Case Number: AD9443 Section / Act: S13(9) Parties: SMURFIT CARTONS LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Company against Rights Commissioner's Recommendation No. BC 152/93 concerning seniority with regard to the appointment of temporary employees to permanent positions.
Recommendation:
Having considered the submissions from the parties the Court is of
the view that the Rights Commissioner's recommendation is
reasonable in the circumstances and should be upheld. The Court
is also satisfied that the items included in the recommendation
were properly before the Rights Commissioner.
The Court accordingly upholds the recommendation and rejects the
appeal and so decides.
Division: Ms Owens Mr Brennan Mr Rorke
Text of Document__________________________________________________________________
CD93619 APPEAL DECISION NO. AD4394
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
SMURFIT CARTONS LIMITED
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION)
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation No. BC 152/93 concerning seniority with regard
to the appointment of temporary employees to permanent
positions.
BACKGROUND:
2. In December, 1992, the Company had two temporary workers in
its employment. It appointed the worker who was the least
senior in service to a permanent position. The Union claims
that the Company's appointment of the junior worker was in
breach of custom and practice within the Company. The
Company rejected the Union's claim.
The dispute was referred to a Rights Commissioner for
investigation and recommendation. On 18th October, 1993, the
Rights Commissioner recommended as follows:-
" In the light of the above my conviction is that in the
context of the Trade Union's acceptance that management
has an unchallenged right to manage its business and to
make appointments in the interests of that business the
Company should recognise that custom and practice
supports the Trade Union's view that all other things
being equal seniority will be a deciding factor.
Where management, in the exercise of its prerogative,
proposes to make an appointment which results in a
person of lesser seniority being appointed then, within
the bounds of discretion, the decision and its
background should be explained to the Trade Union".
The Rights Commissioner's recommendation was appealed by the
Company to the Labour Court on 4th November, 1993, under
Section 13(9) of the Industrial Relations Act, 1969. The
Labour Court heard the appeal on 9th May, 1994. (The
earliest suitable date to both parties).
UNION'S ARGUMENTS:
3. 1. The Union does not dispute Management's prerogative to
manage but custom and practice was breached without
consultation or agreement.
2. Temporary work is a feature of the Printing Industry.
Journeypersons have to endure significant periods of
time in temporary positions before securing permanent
employment.
3. Temporary employees are recalled by the Company as per
seniority of service. Management are able to assess
performance etc., and have the facility to alter the
list after consultation with the Union. Management's
interests are well protected as outlined. Recognition of
temporary service would afford some protection to the
workers concerned.
4. Recruitment from outside the Company is unnecessary and
unfair in circumstances where temporary employees are
currently listed.
COMPANY'S ARGUMENTS:
4. 1. The Rights Commissioner's recommendation is unacceptable
to the Company as he has issued a recommendation outside
of the dispute referred.
2. The Company has always used suitability as its criterion
for appointments. This criterion is defined within the
context of the needs of its business. To suggest that
seniority is a mandatory consideration is not only
unfair to the Company but is unfair to the applicant.
3. At best, all seniority as a criterion will do, is to
generate an erroneous belief amongst would-be applicants
that they have a right to a particular position not
based on their suitability or levels of skill etc.
4. It has never been the practice in the Company to give
reasons to unsuccessful job applicants. Given that
there is a certain level of subjectivity in all
appointments the potential for dispute and a serious
erosion of the management/employee relationship is
enormous.
DECISION:
Having considered the submissions from the parties the Court is of
the view that the Rights Commissioner's recommendation is
reasonable in the circumstances and should be upheld. The Court
is also satisfied that the items included in the recommendation
were properly before the Rights Commissioner.
The Court accordingly upholds the recommendation and rejects the
appeal and so decides.
~
Signed on behalf of the Labour Court
30th May, 1994 Evelyn Owens
F.B./M.M. _______________
Deputy Chairperson