FULL RECOMMENDATION
SECTION 27, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : ST MICHAEL'S HOUSE (REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Owens Employer Member: Mr Keogh Worker Member: Ms Ni Mhurchu |
1. Alleged constructive dismissal.
BACKGROUND:
2. St. Michael's House is a voluntary organisation which provides services to over 1,500 people with learning difficulties, in Dublin city and county. It employs a staff of 750 throughout 70 locations. The worker qualified as a registered nurse mental handicap (RNMH) in December, 1992 and was employed by St. Michael's as a relief nurse from May, 1993, until he resigned his position, in August, 1996. Since 1993, he has applied, unsuccessfully, for a number of permanent nursing positions with St. Michael's. He claims that he has been discriminated against by St. Michael's on the grounds of his sex, on the 7 separate occasions that he applied for permanency, culminating in his unsuccessful application for two positions in June, 1996. He contends that he was more suitable for the permanent posts than the successful female candidates and, having failed to achieve permanency, that he had no alternative but to resign his position. St. Michael's rejected the worker's claim and the matter was the subject of investigation by the Labour Court, on the 10th of July, 1997.
WORKER'S ARGUMENTS:
3. 1. Since 1993, the worker has applied for numerous permanent posts for which he was qualified/experienced. On all occasions his application was unsuccessful and the employer appointed a female applicant. The two posts he applied for in 1996 were in day services where he had worked for 6 months. The successful female candidates had considerably less experience than the worker (details supplied to the Court).
2. On each occasion that his application was unsuccessful the worker raised the matter with management and advised of his ongoing disappointment at their refusal to appoint him to a permanent post. The disappointment was underscored by the fact that, after interview, he was informed that he had performed well. He was left with no alternative but to conclude that he was discriminated against in favour of female candidates.
3. Arising from the continued practice of management of appointing female candidates who appeared to be less experienced than himself, the claimant was left with no alternative but to leave the employment and to claim constructive dismissal.
EMPLOYER'S ARGUMENTS:
4. 1. St. Michael's House rejects the claim that it discriminated against the worker on grounds of sex when he was not appointed for the post applied for in June, 1996. He was not deemed to be as suitable as the successful applicants for the posts in question. Whilst the individuals appointed were external applicants, internal applicants have no right to a vacancy which arises in the organisation. Other internal applicants in previous competitions (including females) have been unsuccessful in the past.
2. There is no evidence to show that the organisation treated the claimant adversely because of his sex. He was given the same opportunities as any other applicant to be considered for the post in question and it was concluded that he was not as suitable as either of the successful applicants (details supplied). His resignation was unreasonable in the circumstances. At no stage did he inform management that he would have no other option but to resign if he was unsuccessful. There is a grievance procedure within the organisation which was not exhausted by the worker prior to his resignation.
ORDER:
On the evidence presented, the Court is satisfied that the claimant was not constructively dismissed and that there were avenues available to him to pursue his case internally through the established grievance procedure or by way of claim under the 1977 Act without resigning from his position.
The Court, accordingly, rejects the claim.
Signed on behalf of the Labour Court
Evelyn Owens
25th of July, 1997______________________
M.K./S.G.Chairman
NOTE
Enquiries concerning this Order should be addressed to Michael Keegan, Court Secretary.