FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NORTHERN REGIONAL FISHERIES BOARD (REPRESENTED BY NORTHERN REGIONAL FISHERIES BOARD) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Mr O'Neill |
1. Loss of seasonal employment.
BACKGROUND:
2. The Union's claim concerns the loss of seasonal employment for the worker since 1996.
The worker successfully applied for a position as a temporary fishery officer (TFO) with the Board in the Falcarragh area in Donegal, and commenced employment in June, 1984. He continued to be employed on a seasonal basis form 1984 to the end of 1992, averaging 20 weeks per year. He did not work in 1988 as funding was not available and did not work from 1993-1995 for the same reason. He was the sole TFO for the Falcarragh region during this period. In 1994, following a national advertisement, a panel of TFOs was set up to be considered for temporary vacancies in the future.
In 1996, funding became available again and the worker applied for his job as a TFO. The job was advertised in a local paper and the worker was interviewed on the 24th of June, 1996. Ten applicants were interviewed, and 3 successful applicants were put on a panel. The worker was notified on the 26th of June that he had not been selected for the post. (The Board did help the worker get seasonal employment in 1997 and 1998 with the ESB..)
The Union contacted the Board and a meeting took place at local level. The Union claims that the only reason given by the Board for not re-employing the worker was his age - he was 52 years old at the time of the interview. The Board contends that the most suitable candidates were chosen.
The Union referred the case to the Labour Court on the 8th of June, 1998, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 11th of November, 1998, in Donegal.
UNION'S ARGUMENTS:
3. 1. The Board has admitted that the worker was an excellent employee during his time as a TFO. The only reason given for not re-employing him was his age. There is no medical basis for this as the worker is as fit and healthy as he was in 1992.
2. No permanent employee would be dismissed because they had reached 52 years of age. Temporary employees should not be treated less favourably.
3. At the interview in June, 1996, the worker was asked very little as he was told that "there is not much that we can ask you as you already know all about the job". There was no mention of his age.
4. Whilst the Union acknowledged the Board's help in securing temporary employment for the worker in 1997-1998, the loss of the job has caused the worker grave financial hardship.
5. The Board did not, as it contends, inform the Union that a more systematic and streamlined approach to recruitment would be taken from 1994 onwards.
BOARD'S ARGUMENTS:
4. 1. In 1994, as part of a wide re-organisation, the Board decided to streamline its approach to recruitment. Prior to this, the recruitment of temporary fishery officers was informal. The Union would have been aware of the new recruitment policy.
2. The selection criteria adopted for the interview on the 24th of June, 1996, included educational qualifications, knowledge of fisheries, personal qualities and practical experiences. The three successful candidates were the most suitable.
3. In 1991, the Greenan Report on safety procedures recommended that the maximum age for sea patrols should be 45 years, but could be extended to 50 years. The Board does not require staff in excess of 50 years to go to sea. The worker had little sea-going experience or qualifications relative to the other applicants.
4. The interview board considered adding the worker's name to the TFO panel list but the worker has always been adamant that he would only work in the Falcarragh area.
RECOMMENDATION:
It is the Court's view that the current dispute might have been avoided if the Board had consulted more fully with the Union prior to introducing changes in the arrangements for the recruitment of temporary seasonalfishery officers.
The Court fully accepts that physical fitness is an important health and safety requirement for this post, particularly in view of the recommendations of the Greenan Report. However, the extent to which any applicant meets the required standard of fitness cannot be ascertained by reference only to their age. In this case, the Court is satisfied that the claimants age was taken into account to his detriment in the selection process, and that this was unfair. Nonetheless, the Court cannot say that the claimant would have been appointed to the vacant post had his age been disregarded.
In all the circumstances, the Court recommends that the dispute be resolved on the following basis:-
1. The panel from whichtemporary seasonal fishery officers are to be selected for the 1999 season should be reconstituted by open competition. The claimant should be considered eligible to apply for inclusion on the panel.
2. Discussions should commence immediately between the parties with a view to agreeing the criterion for appointment to the panel, including the health and safety requirements for the post. Should the parties fail to agree, the matter may be referred back to the Court.
3. The claimant, having been treated unfairly on grounds of his age in the establishment of a previous panel, should be paid the sum of £1,000 in compensation.
Signed on behalf of the Labour Court
Kevin Duffy
23rd November, 1998______________________
C.O'N./D.T.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.