FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : INDEPENDENT NEWSPAPERS - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr McHenry Worker Member: Mr Rorke |
1. Appeal by the Union against the Rights Commissioner's Recommendation 172/99JH.
BACKGROUND:
2. The appeal concerns a worker who is a clerical/administration employee in the Company for over 30 years. He is currently employed in the Check Queries Department. In 1997 the worker who was in charge of the Check Queries Department retired. The claimant provided cover for the period up to January, 1998. The vacant position was then advertised and there were five applicants including the claimant. He was not successful. The most junior member in the department was appointed. The Union claimed that the worker concerned was treated unfairly and should have been appointed to the post given that he was the designated deputy to cover for the Head of the Section. Management rejected the claim, stating that following the interview process the most suitable candidate was appointed. The dispute was referred to a Rights Commissioner for investigation. On the 19th of May, 1999, the Rights Commissioner issued her Recommendation as follows:
"Based on the evidence presented at the hearing taking into account the conclusion set out above, I do not recommend concession of the claim submitted on behalf of the worker.
I do recommend that the Company, supported by SIPTU, should ensure that formation of interview panels, the methods used and the selection criteria are clear and unambiguous and consistent. Such development is in the interests of both parties."
(The worker was named in the Rights Commissioner's Recommendation.)
On the 21st of June, 1999, the Union appealed the Recommendation to Labour Court. The Court heard the appeal on the 21st of September, 1999.
UNION'S ARGUMENTS:
1. The worker concerned has extensive experience in this area, having performed check queries duties at various levels for over ten years i.e. since he first covered this function in the old "Order Department". The worker was the designated deputy to cover for the head of department in his absence. The worker has been complimented by Management for his work in this area. He took over as person in charge on the retirement of the incumbent. The claimant with a fellow Union Committee member met with Management to confirm the situation with regard to filling the vacant post and were advised by Management that the claimant was to cover the work and perform the function of the person in charge.
2. The claimant has a legitimate expectation to have his position confirmed by appointment to the permanent position of supervisor, an expectation re-enforced by Management's acknowledgment of his performance as the deputy in the department.
3. Promotional positions are limited and the post in question is the first line of promotion from the Department.
4. It is grossly unfair to the claimant, in view of his coverage of and input into the senior position, that the Company should appoint the most recent entrant in the Department to the position of supervisor. The Union seeks appropriate redress.
COMPANY'S ARGUMENTS:
1. Because of the Company/Union House Agreement graded personnel fill temporary vacancies. Under this Agreement the worker, as the holder of a Grade 3 post was required to cover the position. The unusual length of the temporary placement was a result of the failure of the parties to agree on staffing levels. The logic of the position put forward by the Union in this case would be to create a structure where almost exclusively, such workers would automatically fill promotional opportunities. The Rights Commissioner, in her conclusion, points out the potential undesirable result of such a policy when she states "The reference to seniority and experience while endorsing the worker's expectation cannot be the sole basis for appointment, as such criteria used almost exclusively have long been determined as potentially discriminatory."
2. The successful candidate was appointed on merit, this is not disputed by the Union. While working as a "Junior" Tele Sales Receptionist, she was successful in applying for a Grade 4 post in the Circulation Section even though "experienced" circulation workers applied. This was accepted without demur.
3. The Company acted in a fair, reasonable manner and asks the Court to uphold the Rights Commissioner's Recommendation.
DECISION:
The Court considers that the events giving rise to this dispute were handled less than satisfactorily. The claimant was left in an acting position for an inordinate length of time and in consequence developed an understandable expectation that he would be confirmed in the post. Both parties should ensure that arrangements are put in place to avoid similar occurrences in future.
With regard to the substance of the Union's claim, the Court concurs with the conclusions of the Rights Commissioner. While acknowledging the claimant's expectations and his undoubted disappointment, this cannot offset the Company's obligation to fill promotional posts by way of an open and competitive process.
In all the circumstances of this case it is the decision of the Court that the recommendation of the Rights Commissioner be upheld and the appeal disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
12th October, 1999.______________________
TOD/BCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.