AD9543

Subject:
Appeal by the Union against Rights Commissioner's Recommendation No. CW123/94 concerning alleged unfair dismissal.

Recommendation:
I recommend that the Committee offers and the workers
accept the remuneration they would have received had
their employment terminated on 17th January, 1994 in
settlement of this dispute".

The worker was named in the recommendation.

The Rights Commissioner's recommendation was appealed by the
Union to the Labour Court on 14th December, 1994 under
Section 13(9) of the Industrial Relations Act, 1969. A
Labour Court hearing took place in Nenagh on 11th April,
1995, in relation to the appeal.





UNION'S ARGUMENTS:

3. 1. The worker was interviewed for the position as part-time
tutor by the then manager of Youthreach, Roscrea on 3rd
December, 1992 during which he was asked questions in
relation to his qualifications and experience.

2. The worker was requested to submit a syllabus for the
next twelve months. This syllabus was submitted after
careful preparation and was accepted by the North
Tipperary VEC. This request for a syllabus indicated to
him that he had continuity of employment at the centre.


3. The worker was dismissed within days of his work at the
Youthreach Centre being highly praised at a VEC meeting
in October, 1993 by a member of the Board of Management
of the Centre.

4. Following his interview on 12th October, 1993, and 6th
January, 1994, no reason has been offered as to why the
claimant in this appeal was not deemed to be "suitable"
for appointment.

5. The experience and qualifications of the worker and the
favourable comments on his work by VEC members and
others, and in view of his impressive record in the
Youthreach Programme, it is reasonable to state that he
had good reason for expecting to continue in his
employment. His replacement by another worker with
little experience is not justified.

6. The merit of the worker's case was well-established by
the Rights Commissioner. The Union is in agreement with
his findings. It is with the subsequent recommendation
that it begs to differ. This recompense is inadequate
for the worker who was happy in his work and well
regarded by both staff and students. In the
circumstances the Union requests the Court to recommend
that the worker be restored to his position forthwith.




COMMITTEE'S ARGUMENTS:

4. 1. It is Management's prerogative to select the most
suitable and eligible candidates for vacancies,
temporary or otherwise that arise within the domain of
the VEC. In seeking to select the most suitable
candidates, the VEC is clearly within its right to
advertise positions and invite applications for them.
Given that they are positions of high responsiblity and
that the encumbents are dealing with a disadvantaged
category of students, there is an onus imposed upon the
Committee to obtain and recruit the most suitable
candidates for any tutoring positions that arise within
such programmes as the Roscrea Youthreach Programme.

2. Whilst the worker was not formally interviewed on his
inception to temporary/part-time role in December, 1992,
he was interviewed on two separate occasions in October,
1993 and January, 1994. He was afforded a fair
opportunity through the interview process with an
experienced interview panel to further his application
for the vacancy. Cognisance should be taken of
recruitment practice in the Public Sector whereby
occupancy of temporary positions does not under any
circumstances mean that the successful applicants in an
open public competition should be the previous
incumbents of such temporary positions.

3. Management's decision to select an alternative but more
suitable candidate for the position of literacy/numeracy
tutor has been an overwhelming success.

4. The fact that the claimant participated in a prolonged
period of unofficial industrial action was in itself an
unlawful act as such action is totally contrary to the
provisions of the 1990 Industrial Relations Act. Such
unlawful industrial action set a poor example to
students particularly when in the first instance the
assistance of the Labour Relations Commission could have
been invoked.




5. The "knock on effects" of facilitating this claim would
serve to undermine the recruitment process employed by
the Tipperary Vocational Educational Committee.

6. North Tipperary VEC cannot accept the Rights
Commissioner's recommendation. The Rights Commissioner
recommended that the worker accepts the remuneration he
would have received from the date of termination of his
employment on the 8th November, 1993 to the 17th
January, 1994 in settlement of this dispute. To accept
the terms of this Recommendation would "de facto"
confirm that the employer in this case had unfairly
dismissed the worker. The employer in this case totally
refutes the assertion that the dismissal and selection
process seemed to have been manipulated to place the
applicant at a disadvantage.



DECISION:
Having considered the written submissions of the parties and the
arguments made during the hearing the Court arrived at the
conclusion that it could find no basis to uphold the appeal of
either the claimants or the respondent.

The Court decides however that the recommendation paragraph as
issued by the Rights Commissioner be amended to-

- that the Committee pay the worker an 'ex-gratia' sum
equivalent to the gross income which he would have received
for the period 5th November, 1993 to 17th January, 1994.

Division: Ms Owens Mr Pierce Mr Walsh

Text of Document__________________________________________________________________

CD954 APPEAL DECISION NO. AD4395

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969

PARTIES:
COUNTY TIPPERARY NORTH RIDING VOCATIONAL EDUCATIONAL COMMITTEE

AND

TEACHERS' UNION OF IRELAND


SUBJECT:

1. Appeal by the Union against Rights Commissioner's
Recommendation No. CW123/94 concerning alleged unfair
dismissal.



BACKGROUND:

2. The County Tipperary North Riding Vocational Education
Committee is a statutory body with responsibilities for
education and training in the County.

The worker concerned commenced employment with the VEC at its
Youthreach Centre in Roscrea on 7th December, 1992. He was
employed in a temporary capacity as a literacy/numeracy tutor
and worked approximately 11 to 14 hours per week.

The position as held by the worker was advertised in October,
1993 along with other positions. The worker applied for and
was interviewed for the position by an interview panel. His
application was unsuccessful.

The recommendation of the interview panel was that no
appointment be made but that another applicant be appointed
to the position of literacy/numeracy tutor on a part-time
basis up until 31st December, 1993. The employment of the
worker concerned was terminated on 8th December, 1993.

On 11th December, 1993 the position of literacy/numeracy
tutor was advertised in the local press. The worker
concerned applied for and was interviewed for the position.
His application was unsuccessful.




The worker claimed that he was unfairly dismissed and
referred the dispute to a Rights Commissioner for
investigation and recommendation. The Rights Commissioner's
findings and recommendation are as follows:-

"Findings

This hearing perhaps posed as many questions as it
answered. As far as I am concerned any past history or
personal relationship has no relevance to the issue
involved. The dispute concerns alleged unfair
dismissal. One cannot quibble with the right of an
employer to dismiss subject to it being done on stated
reasons and in a fair manner. In this instance I am not
clear as to why the dismissal took place when it did. I
am not qualified to question the selection process, but
it certainly begs a question. Two successful incumbents
are dismissed (for no apparent reason other than the
need to hold a public competition), and two temporary
appointments are made for a matter of a month or so. I
cannot explain the glaring anomalies in this dispute.
The dismissal and selection process seems to have been
manipulated to place the applicants at a disadvantage.
I consider that their position does have some merit,
notwithstanding the Committee's rights and public
obligations.

Recommendation

I recommend that the Committee offers and the workers
accept the remuneration they would have received had
their employment terminated on 17th January, 1994 in
settlement of this dispute".

The worker was named in the recommendation.

The Rights Commissioner's recommendation was appealed by the
Union to the Labour Court on 14th December, 1994 under
Section 13(9) of the Industrial Relations Act, 1969. A
Labour Court hearing took place in Nenagh on 11th April,
1995, in relation to the appeal.





UNION'S ARGUMENTS:

3. 1. The worker was interviewed for the position as part-time
tutor by the then manager of Youthreach, Roscrea on 3rd
December, 1992 during which he was asked questions in
relation to his qualifications and experience.

2. The worker was requested to submit a syllabus for the
next twelve months. This syllabus was submitted after
careful preparation and was accepted by the North
Tipperary VEC. This request for a syllabus indicated to
him that he had continuity of employment at the centre.


3. The worker was dismissed within days of his work at the
Youthreach Centre being highly praised at a VEC meeting
in October, 1993 by a member of the Board of Management
of the Centre.

4. Following his interview on 12th October, 1993, and 6th
January, 1994, no reason has been offered as to why the
claimant in this appeal was not deemed to be "suitable"
for appointment.

5. The experience and qualifications of the worker and the
favourable comments on his work by VEC members and
others, and in view of his impressive record in the
Youthreach Programme, it is reasonable to state that he
had good reason for expecting to continue in his
employment. His replacement by another worker with
little experience is not justified.

6. The merit of the worker's case was well-established by
the Rights Commissioner. The Union is in agreement with
his findings. It is with the subsequent recommendation
that it begs to differ. This recompense is inadequate
for the worker who was happy in his work and well
regarded by both staff and students. In the
circumstances the Union requests the Court to recommend
that the worker be restored to his position forthwith.




COMMITTEE'S ARGUMENTS:

4. 1. It is Management's prerogative to select the most
suitable and eligible candidates for vacancies,
temporary or otherwise that arise within the domain of
the VEC. In seeking to select the most suitable
candidates, the VEC is clearly within its right to
advertise positions and invite applications for them.
Given that they are positions of high responsiblity and
that the encumbents are dealing with a disadvantaged
category of students, there is an onus imposed upon the
Committee to obtain and recruit the most suitable
candidates for any tutoring positions that arise within
such programmes as the Roscrea Youthreach Programme.

2. Whilst the worker was not formally interviewed on his
inception to temporary/part-time role in December, 1992,
he was interviewed on two separate occasions in October,
1993 and January, 1994. He was afforded a fair
opportunity through the interview process with an
experienced interview panel to further his application
for the vacancy. Cognisance should be taken of
recruitment practice in the Public Sector whereby
occupancy of temporary positions does not under any
circumstances mean that the successful applicants in an
open public competition should be the previous
incumbents of such temporary positions.

3. Management's decision to select an alternative but more
suitable candidate for the position of literacy/numeracy
tutor has been an overwhelming success.

4. The fact that the claimant participated in a prolonged
period of unofficial industrial action was in itself an
unlawful act as such action is totally contrary to the
provisions of the 1990 Industrial Relations Act. Such
unlawful industrial action set a poor example to
students particularly when in the first instance the
assistance of the Labour Relations Commission could have
been invoked.




5. The "knock on effects" of facilitating this claim would
serve to undermine the recruitment process employed by
the Tipperary Vocational Educational Committee.

6. North Tipperary VEC cannot accept the Rights
Commissioner's recommendation. The Rights Commissioner
recommended that the worker accepts the remuneration he
would have received from the date of termination of his
employment on the 8th November, 1993 to the 17th
January, 1994 in settlement of this dispute. To accept
the terms of this Recommendation would "de facto"
confirm that the employer in this case had unfairly
dismissed the worker. The employer in this case totally
refutes the assertion that the dismissal and selection
process seemed to have been manipulated to place the
applicant at a disadvantage.



DECISION:
Having considered the written submissions of the parties and the
arguments made during the hearing the Court arrived at the
conclusion that it could find no basis to uphold the appeal of
either the claimants or the respondent.

The Court decides however that the recommendation paragraph as
issued by the Rights Commissioner be amended to-

- that the Committee pay the worker an 'ex-gratia' sum
equivalent to the gross income which he would have received
for the period 5th November, 1993 to 17th January, 1994.
~

Signed on behalf of the Labour Court



15th May, 1995 Evelyn Owens
F.B./D.T. ____________
Chairman