FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NEC SEMICONDUCTORS (IRELAND) LIMITED - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Employer Member: Worker Member: |
1. Appeal against Rights Commissioner's Recommendation ST 73/96.
BACKGROUND:
2. The dispute concerns a claim by the Union that a named worker was unfairly treated in the matter of the filling of a post. The vacancy for "Machine Setters" was advertised in May, 1995, and 19 applicants were interviewed, of whom 3 were offered positions. The Union claims that a probationary worker was appointed to one of the positions, which was in contravention of the rules covering the appointments, i.e., that applicants should have a minimum of 6 months' experience. The dispute was investigated by a Rights Commissioner who found, inter alia, that
"It well may be true that the successful candidate was indeed a Probationer but the stark facts revealed in the tests undertaken by the 19 Applicants are that there were three posts to be filled and that the Claimant was ranked No. 7 after all the tests and the interviews were completed".
In his Recommendation he stated that he could not reasonably overturn the outcome of such a process and thereby place the seventh person (the Claimant) ahead of the sixth, fifth, fourth, and third person, by placing him in the last filled post of the three on offer. He recommended that the claim, as presented, should fail.
The Union appealed the Recommendation on the 23rd of May, 1996. The Court heard the appeal, in Navan, on the 25th of September, 1996.
UNION'S ARGUMENTS:
3. 1. The successful candidate in question was a probationary employee while long-serving employees were denied the opportunity.
2. This probationary employee was successful while at least two other probationary workers who, when applying for the position, were told they would not be successful but were encouraged to apply for experience that could help them in the future.
3. This position was awarded to a probationary employee despite the fact that the position as advertised stipulated that 6 months' experience within NEC was required.
4. The Union only became aware that the Claimant was ranked 7th, through the Rights Commissioner's Recommendation. Since then, the Union has unsuccessfully attempted to establish the remaining rankings, in particular which worker should have been ranked 3rd, in line with the specifications of the advertisement.
5. The applicant who came 3rd as per the competition rules should be identified and promoted even if that should not be the Claimant, who stood as a test case.
COMPANY'S ARGUMENTS:
4. 1. At all stages of the grievance procedures followed, it was confirmed that the selection process was fair and that the Company was not in a position to offer the Claimant a Machine Setter position.
2. Informal feedback was given to the Claimant as to areas where he required future development (details supplied to the Court).
3. The Company's priorities are that the best available candidates are selected and that the selection process is fairly conducted.
4. The advertisement indicated that applicants "should" have 6 months' experience. Accordingly, all applications were processed.
DECISION:
The Court was not in a position to deal with the case made by the Union to "promote the applicant who came third, even should that not be the claimant".
The case before the Rights Commissioner was in relation to the named claimant and the Rights Commissioner's Recommendation dealt specifically with that case.
The Court, having considered the above and arguments made, upholds the Rights Commissioner's Recommendation and rejects the Union appeal.
The Court so decides.
Signed on behalf of the Labour Court
Finbarr Flood
15th of October, 1996______________________
M.K./S.G.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Keegan, Court Secretary.