FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : BUS EIREANN - AND - A WORKER (REPRESENTED BY DAMIEN TANSEY & COMPANY SOLICITORS) DIVISION : Chairman: Employer Member: Worker Member: |
1. The worker's non-promotion from Clerical Assistant, Class 2 (CA2) to Senior Clerical Officer, Class 1 (SCO1).
BACKGROUND:
2. The worker commenced employment with the Company, in Donegal, in July, 1974 in the capacity of temporary Shorthand Typist. In December, 1983, she transferred to the Company's Stranorlar depot, on the closure of the Donegal offices. In 1988, the grade of Shorthand Typist, together with other specified grades, was incorporated into the single grade of Clerical Assistant. The clerical grading structure is as follows:
Senior Clerical Officer, Class 1 (SCO1)
Senior Clerical Officer, Class 2 (SCO2)
Clerical Officer, Class 1 (CO1)
Clerical Officer, Class 2 (CO2)
Clerical Officer, Class 3 (CO3)
Senior Clerical Assistant (SCA)
Clerical Assistant, Class 1 (CA1)
Clerical Assistant, Class 2 (CA2).
In July/August, 1988, 2 CO3 vacancies which arose in the Stranorlar depot were filled, one by a CA2 who had already commenced working in an acting capacity in that position. The second vacancy was advertised and was filled by another CA2, from the Stranorlar Depot. The claimant applied, unsuccessfully, for this second CO3 vacancy.
The claimant referred the matter of her failure to secure one of the CO3 positions to a Rights Commissioner, for investigation. On the 1st of February, 1991, he found, inter alia, that the Company had not acted unfairly in relation to either of the CO3 promotions.
He recommended that she be placed in the CO3 grade by the Company, at the first opportunity. The Rights Commissioner's Recommendation was accepted by both parties.
In March, 1991, a further CO3 vacancy arose at the Stranorlar Depot. This position was not offered to the Claimant but was filled by a clerk who was originally from Stranorlar and who was transferred from Inchicore Depot, with the approval of the Transport Salaried Staffs' Association.
Following an Operations and Management study in 1993, a reorganisation of the office was proposed which was implemented in 1995. In April, 1995, the Chief Clerk (SCO2) retired and his position was advertised. The Claimant was precluded from applying for this position, on the grounds that she had not met the required administrative standard (at least CO3). She claims, however, that she had performed the bulk of the Chief Clerk's duties during his illness, from October, 1994, to June, 1995. The Company claims that she attempted to assume, without authority, the duties of the Chief Clerk and that she was advised that those duties were to be carried out only by the acting Chief Clerk.
In March, 1995, the claimant sought to have her position regraded (as she had done in February, 1989). Her claim for regrading was unsuccessful. She subsequently carried out research into the duties carried out in a range of depots and found that the duties carried out by her pertained to the position of CO3, at least.
Her regrading application was the subject of some discussion at a conciliation conference between SIPTU and the Company, concerning the reorganisation of the Stranorlar Depot. The Company outlined the conditions under which Clerical Assistants are eligible to apply for Clerical Officer positions. The Company declined a request to attend a Rights Commissioner's investigation about the matter of the worker's regrading and following numerous attempts by the worker to raise the issue with management, it was referred to the Labour Court on the 19th of October, 1995, in accordance with Section 20(1) of the Industrial Relations Act, 1969.
The Court carried out its investigation, in Donegal, on the 30th of May, 1996, the earliest date convenient to both parties.
WORKER'S ARGUMENTS:
3. 1. The worker has been an employee of the Company for 22 years. During this time, she has not been afforded the opportunity of any promotion.
2. There is no basis, by way of custom or practice or written document, for the rationale constantly used by the Company to the effect that in order to advance a Grade level, a worker has to be on the immediately preceding Grade, e.g., in order to become a CO2 one must first be a CO3.
3. There is a duty, pursuant to the terms and conditions agreed between the Company and its workers in 1946, to advertise for each vacancy which arises. The Company failed in its duty to advertise in the case of both of the CO3 vacancies that arose in 1988.
4. The Company has failed in its duty to abide by the terms of the Rights Commissioner's Recommendation of 1991. It is absurd to suggest that the earliest available opportunity to promote the Claimant to the Grade of CO3 arose some four years after the date of that Recommendation.
5. The worker has been denied the rightful opportunity to apply for the position of SCO2 Grade Administrator with the Company. Between October, 1994 and June, 1995, she performed practically all of the duties expected of an Administrative Officer at that level. Management refused to entertain the Claimant's application for the position of SCO2 because they saw no material change in her duties.
6. The Company has failed to reward the worker adequately for her dedicated and exemplary service over 22 years, by a promotion, not only to the level of CO3, but to a grade significantly higher than that.
7. It is unreasonable for the Company to say that it accepts the Rights Commissioner's Recommendation, but that it first has to be laundered through the Company's existing structures.
COMPANY'S ARGUMENTS:
4. 1. The Company was not in a position to offer the worker a CO3 position. All such positions that become vacant have to be advertised and the Company has the duty to appoint the most suitable applicant.
2. In his Recommendation in February, 1991, the Rights Commissioner suggested that the worker "....put these matters behind her and work as a member of a team .......". Since then she has not in any way attempted to adopt a more constructive role within the clerical function of the Stranorlar department. Additionally, she did not apply for a CO3 vacancy which was advertised in August, 1995, in accordance with the National Agreement.
3. Under that agreement, a Clerical Assistant, under certain conditions, may only apply and be considered for a Clerical Officer, Class 3 position.
4. The assertion that the Claimant has carried out the duties of the Senior Clerical Officer during his absence on sick leave is incorrect. She attempted, without authority, to assume his duties and, subsequently, was instructed by the District Manager not to perform those duties. She tried to take on extra duties in an effort to boost her claims for regrading.
5 There is an internal mechanism whereby cases where a claim for regrading has been refused can be investigated. This mechanism was not used by the worker.
6. While the Company accepted the Rights Commissioner's Recommendation, it did not foresee the possibility of knock-on problems arising.
RECOMMENDATION:
The Court considered the written and oral submissions made by the parties.
Based on the information before it the Court recommends as follows:-
(1) The Claimant to be placed on CO3 Grade, on a personal basis, from 1/6/'96.
(2) The Claimant to apply for and accept the next CO3 Grade vacancy that arises in Bus Eireann.
Signed on behalf of the Labour Court
Finbarr Flood
11th June, 1996______________________
M.K./S.G.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Michael Keegan, Court Secretary.