FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TELECOM EIREANN - AND - A WORKER (REPRESENTED BY COMMUNICATIONS WORKERS' UNION (CWU) DIVISION : Chairman: Employer Member: Worker Member: |
1. Alleged denial of promotion.
BACKGROUND:
2. 1. The worker was a Technical Officer (T.O.) in Cork and in 1983 acted in the grade of Engineering Superintendent (E.S.). In December, 1987 he acted E.S. against post No. 244S.
In November, 1988 this post was advertised by the Company as a vacant post under circular no. 37/88. The worker was the only applicant. However, the Company amended the advertisement and re-issued it again in January, 1989 under circular no. 6/89. The amendment had the effect of allowing two other employees to apply for the vacant post. It was offered to one of them who subsequently declined to take it up.
2. The Union claims that the post should then have been offered to the worker as the most senior panellist. The Company rejected the Union's claim and stated that acting on the E.S. panel did not confer any right to promotion to that grade. Furthermore, the decision to fill any E.S. posts was the prerogative of the Company.
3. The Company stated that from October 1988 to September 1991 negotiations on a restructuring of the technical grades were conducted at the Company's Joint Conciliation Council (JCC) which resulted in a collective agreement (JCC Report No. 482) being adopted in October, 1991. The agreement provided for the abolition of the Engineering Superintendent (E.S.) grade.
In addition, two other issues impacted on this particular case, firstly an appeal by 147 Engineering Superintendent panellists seeking to restrain the Company from implementing the terms of the restructuring was lodged in the High Court in December, 1991. The High Court found in favour of the plaintiffs. The Company subsequently appealed the case to the Supreme Court. The Supreme Court allowed the Company's appeal and dismissed the plaintiffs' claim. The second issue which impacted on this case was the "Dublin Only" acting panel. It meant that staff on the national panel could apply for vacancies in any district (including Dublin) but staff on the "Dublin Only" panel could only apply for Dublin District vacancies.
A difficulty arose in 1989 between the Company and the Unions over promotions from the "Dublin Only" panel and as a result no further promotions from the acting Engineering Superintendent (E.S.) panel were made. This applied to all panellists including the worker who had applied for E.S. posts under circular 6/89.
4. The Union claims that the worker should have been offered the vacant post number 244S when it was first advertised in 1988 as he was the only applicant. The Union does not accept the Company's claims that the worker was the victim of restructuring of the grades (Agreed Report 482) in the Company. Attempts to have the matter resolved locally through the Grievance Procedures also failed.
5. As no agreement was possible between the parties the Union sought to have the dispute referred to a Rights Commissioner for investigation and recommendation. The Company objected to such an investigation. The Union referred the dispute to the Labour Court under Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's recommendation. The Court investigated the dispute on 26th July, 1996.
UNION'S ARGUMENTS:
3. 1. The worker should have been offered the vacant post when it was advertised in 1988 as he was the only applicant.
2. The worker has acted as Engineering Superintendent since 1983 up until the restructuring of the grades. The Company has treated him very badly.
3. The worker carried out his duties while acting as Engineering Superintendent in a competent and efficient manner. Local management has praised his work.
4. The worker should have been allowed to have his case dealt with through the Grievance Procedures - Section 3(d) Mediation Committee provides for this. He has been unfairly treated by the Company in this regard.
5. The Union does not accept the Company's claim that the worker was the victim of restructuring. The claim for restructuring of grades was discussed at a JCC meeting on 13th October, 1988. A Council decision on the 9th February, 1989 referred it to a Sub Committee for further consideration. The vacancy was advertised in November, 1988 and should have been filled.
COMPANY'S ARGUMENTS:
4. 1. Agreement was reached in September, 1991 to restructure the technical grades in the Company. It involved the creation of a flatter management structure, new team structures, new grades and defined responsibilities. The agreement also provided for the abolition of the Engineering Superintendent grade.
2. The decision to fill Engineering Superintendent positions is the prerogative of the Company. The decision to advertise the post did not represent a commitment to make a promotion.
3. As a result of the restructuring programme the complainant has received a 25% increase in basic pay between January 1991 and May 1992.
4. The agreement concluded in September 1991 between the Company and the Unions provided for the abolition of the Engineering Superintendent grade. The last promotions to this grade occurred in October 1988.
5. The consequences of allowing any concession to the worker on this claim will have serious ramifications for the Company and will lead to repercussive claims from other panellists.
RECOMMENDATION:
The Court, given all of the circumstances of this case and in the light of the oral and written submissions made by the parties, does not find grounds have been adduced to warrant concession of the Union's claim.
Signed on behalf of the Labour Court
Tom McGrath
25th September, 1996______________________
L.W./S.G.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Larry Wisely, Court Secretary.