Labour Court Database __________________________________________________________________________________ File Number: CD95671 Case Number: LCR15084 Section / Act: S26(1) Parties: UNIVERSITY COLLEGE GALWAY (Represented by THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION) - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Dispute concerning the failure of the College to make an appointment.
Recommendation:
5. The Court accepts that the claimant could not be appointed to
the post she applied for in 1981 because of the subsequent
Government embargo on recruitment.
However, the Court finds that a commitment was given and that the
issue should have been addressed in 1986 when a similar post was
filled. The Court is of the view that the College should in the
circumstances have appointed the claimant to the post particularly
as her qualifications had been enhanced in the meantime.
While the Court cannot recommend the creation of a post that would
be surplus to requirements, the Court does recommend that the
College appoint the claimant to a suitable permanent post at the
earliest possible date.
Division: Mr Flood Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
CD95671 RECOMMENDATION NO. LCR15084
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
PARTIES: UNIVERSITY COLLEGE GALWAY
(Represented by The Irish Business and Employers Confederation)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Dispute concerning the failure of the College to make an
appointment.
BACKGROUND:
2. The dispute concerns a worker who commenced employment with the
College as a trainee technician in December, 1975. She resigned
from the post in 1977. The worker was again appointed in 1979 as a
temporary technician and made redundant in 1983. During the period
of this employment she applied successfully for an advertised post
in the College's Microbiology Department. She was advised by
letter dated 17th July, 1981 that, due to serious financial
constraints, the College could not proceed with her appointment in
the Microbiology Department. Subsequently she was appointed to a
number of temporary posts. She also applied unsuccessfully for
permanent positions. The worker has been employed in a temporary
capacity in various positions and since 1993 she is employed
part-time in the College's Oceanography Department.
The Union claims that the College should honour its commitment of
1981 and appoint the worker to the technician position in the
Microbiology Department. Management reject the claim.
The dispute was referred to the Labour Relations Commission and a
conciliation conference was held on the 29th September, 1995.
Agreement was not possible and the dispute was referred to the
Labour Court on the 22nd November, 1995. A Court hearing was held
in Galway on the 7th February, 1996.
UNION'S ARGUMENTS:
3. 1. Two posts were advertised at the same time in 1981. One
of these posts was filled in spite of the financial
constraints outlined by Management. When the second post
became free again in 1986 the College failed to interview
the claimant and did not take the opportunity to resolve
her case by appointing her. In the intervening years
(1981-1986) she acquired further qualifications.
(Details supplied to the Court).
2. At no stage was the worker informed that the original
post would not be filled. This is confirmed by the
original letter of July 1981 and the position was not
altered either verbally or in writing until 1995 when the
College made its 'no obligation' statement.
3. The only employment offered to the claimant since 1986
has been contract work. She has suffered on-going
financial loss and will not recover those years. At
present she works one and a half days per week.
4. There is a shortage of technicians in the Microbiology
Department. The claimant could be appointed to an
existing post where a need arises.
5. With regard to the 'passage of time' argument this may be
construed to infer some question of suitability.
However, the worker was requested to rejoin the staff on
a contract basis in 1991 and her employment was
terminated only because of the cessation of E.U. funding.
The worker has gained practical work experience in the
Department in question. Overall funding is not a
problem. The worker is now employed in the Department of
Oceanography and is both flexible and suitable for work
in any basic technician post.
COLLEGE'S ARGUMENTS:
4. 1. Following the cessation of temporary employment in 1983
the worker applied in November, 1986 for an advertised
permanent vacancy in the College's Microbiology
Department. She was not shortlisted for interview and
was notified that her application was unsuccessful. The
worker did not query this decision nor make any approach
to the College at this stage.
2. The College does not accept that it has an obligation to
appoint the worker permanently to a technician post,
given the significant lapse of time which has occurred
from the time she was advised that she would have been appointed
to a post had the College not encountered financial
difficulties preventing the appointment.
3. Since 1981 the worker has applied unsuccessfully on two
separate occasions for permanent technician posts. The
College has assured her that any application received for
an advertised permanent vacancy in future will be
considered on its merits. Management cannot concede the
Union's claim that a permanent technician post should now
be offered to her of right.
RECOMMENDATION:
5. The Court accepts that the claimant could not be appointed to
the post she applied for in 1981 because of the subsequent
Government embargo on recruitment.
However, the Court finds that a commitment was given and that the
issue should have been addressed in 1986 when a similar post was
filled. The Court is of the view that the College should in the
circumstances have appointed the claimant to the post particularly
as her qualifications had been enhanced in the meantime.
While the Court cannot recommend the creation of a post that would
be surplus to requirements, the Court does recommend that the
College appoint the claimant to a suitable permanent post at the
earliest possible date.
~
Signed on behalf of the Labour Court
Finbarr Flood
29th February, 1996 --------------
T O'D/U.S. Deputy Chairman
NOTE:
ENQUIRIES CONCERNING THIS RECOMMENDATION SHOULD BE ADDRESSED TO
MR TOM O'DEA, COURT SECRETARY.