FULL RECOMMENDATION
SECTION 24, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : EIRCOM LTD (REPRESENTED BY ANTHONY KERR B.L. INSTRUCTED BY SOLICITORS OFFICE EIRCOM) - AND - BRIDGET GERTRUDE BOLAND (REPRESENTED BY CATHY MCGUIRE B.L. INSTRUCTED BY O'MARA GERAGHTY MCCOURT SOLICITORS) DIVISION : Chairman: Mr Flood Employer Member: Mr Carberry Worker Member: Mr. Somers |
1. Appeal for implementation of Labour Court Determination DEE031.
BACKGROUND:
2. The Court in Determination DEE031 upheld the recommendation of the Equality Officer and recommended that the claimant who is employed at Grade Tex VIII by the respondent be appointed to the next acting-up position which became available. The claimant alleges that the Company has failed to comply with the Court's Determination DEEO31.
The Company rejects the claim that it has not complied with the Court's Determination. It states that it offered the claimant the next acting-up position which became available, which happened to be in Waterford. This offer was rejected. A subsequent offer of an acting-up position in Dublin was also rejected.
A notice of application for implementation of Decision DEE031 was lodged on behalf of the claimant on the 7th July, 2003 pursuant to the provisions of section 24(1) of the Employment Equality Act, 1977 for an Order directing the Respondent to comply with Determination DEE031.
A Labour Court hearing was held on the 24th October, 2003.
CLAIMANT'S ARGUMENTS:
3. 1.The claimant submits that the respondent has sought to avoid compliance with Labour Court Determination DEE031.
2. The respondent offered the claimant an acting Tex V11 position when it knew that it was impracticable for the claimant to accept that position.
3. The respondent then purported to comply with the Court's Determination by offering the claimant an acting TEXV11 position as CMM specialist. The position of CMM specialist is graded in the company as a TEXV1 position, which is one grade higher than TEXV11.
4. The claimant asks the Court to direct the respondent to offer the claimant the position of acting CMM specialist at TEXV1 level in order to comply with the Court's Determination, in a place easily accessible to the claimant by bus, and not require the claimant to accept as a condition of appointment, that the appointment is temporary in nature.
5. Given the respondent's failure to comply with the Court's Determination, the claimant seeks to have her appointment to the said position backdated to 24th January, 2003.
COMPANY'S ARGUMENTS:
4. 1. The Company has done everything in its power to fully implement the Court's Determination of the 24th January, 2003. It has paid the claimant the €20, 000 awarded by the Equality Officer in full without deduction of PAYE and PRSI. It hasalso paid the €4,000 awarded by the Court.
2. The claimant was offered the next acting-up position that became available which was located in Waterford. However, this was rejected by the claimant.
3. A further offer of an acting-up position in Dublin was made but was also rejected by the claimant.
4. The failure to appoint the claimant to an acting-up position is due entirely to the refusal of the claimant to accept both the initial and subsequent offer of acting-up positions.
5. The Company requests the Court to reject the application for relief under Section 24 of the Employment EqualityAct, 1977 and to hold that the respondent has fully implemented Labour Court Determination DEE 031.
ORDER:
The Court has considered carefully the written and oral submissions made by the parties at this hearing held under Section 24 (1) of the Employment Equality Act, 1977 following an application for an order that the respondent do such things as would result in the implementation of Labour Court Determination DEE/031/2003.
The Court in Determination DEE031/2003 dated the 24th January, 2003 upheld the recommendation of the Equality Officer and in the Determination directed that“the appellant be appointed to the next acting-up position that becomes available".
Section 24 of the Employment Equality Act, 1977 provides that where a person concerned complains to the Labour Court that a Determination has not been implemented, the Court shall consider the complaint and if the Court is satisfied that the complaint is well founded then the Court may direct the respondent“to do such things as will in the opinion of the Court, result in the Determination being implemented”.
The Claimant's Case:
The claimant claimed that the respondent purported to comply with the Determination by offering the claimant an acting Tex VII position in Waterford, despite knowing that it would not be practical for the claimant to accept such a position.
The respondent it was claimed then further purported to comply with the direction by offering the claimant an acting-up position as CMM Specialist which the respondent graded as a Tex VII position. The claimant however submits that this position of CMM Specialist is properly characterised as a Tex VI position, one grade higher than a Tex VII, and therefore the respondent's offer of an acting up position as a CMM Specialist in a Tex VII grade does not properly reflect the responsiblity of the position and cannot be accepted by her.
The claimant submitted that the respondent sought to avoid compliance with Labour Court Determination by offering a position that it knew would be impractical for the claimant to accept and which remains unfilled.
She claimed if she had accepted that position that she would have been carrying out a role at a lesser rate of pay and lesser status than the position should attract, while male colleagues were carrying out essentially the same role at a higher rate of pay and status.
Furthermore, the respondent required the claimant to sign a document accepting that this appointment would be temporary when it knew that the claimant’s colleagues had never been required to sign such a document.
The claimant asked the Court to direct the respondent to offer the claimant the position of acting CMM Specialist at Tex VI level in order to comply with the Court’s Determination dated the 24th January, 2003 in a place easily accessible to the claimant by bus and not to require the claimant to accept as a condition of her appointment, that the appointment is temporary in nature.
Finally the claimant argued that as the respondent had failed to comply with the Court’s Determination the claimant sought to have her appointment to the said position backdated to the 24th January, 2003.
The Company Position:
The Company argued that it had sought to appoint the applicant to the next acting-up position, as directed by the Court, which happened to be in Waterford. The applicant refused the offer on the basis that it was neither possible nor practical for her to accept the position in Waterford.
In the interest of fairness and of implementing the Labour Court Determination a subsequent offer of an acting-up position in Dublin was made to the claimant by letter, dated the 11th July, 2003.
The letter included the proposed Role Profile. The applicant rejected this offer.
The respondent submits that it made every effort to comply with the Labour Court’s Determination of 24th January, 2003 and that its failure to appoint the claimant to the next acting-up position that became available, following the Court’s Determination was entirely due to the refusal by the applicant to except both the initial and subsequent offers of acting-up positions.
Consequently the respondent requested that the Court reject the application for relief under Section 24 of the Employment Equality Act, 1977 and to hold that the respondent has fully implemented the Determination.
Court Findings:
The Court in its Determination recommended that the respondent appoint the claimant to the next acting-up position that became available. It would not have been know to the Court that the next likely vacancy would arise outside of Dublin. However, the Court accepts the bona fide of the Company in offering the position in Waterford to the claimant, as it did fit the definition of the next acting-up position and it appears that individuals have moved in similar circumstances.
The Court notes that the claimant was then offered another acting-up position in Dublin but that the claimant believes that this post was wrongly graded and has requested that the Court instruct the Company to appoint her on a grade other than that given to the post.
The Court was further asked to determine that the claimant should be appointed to a post that is on a bus route and that the claimant not be required to accept in writing that the appointment be only temporary in nature.
In relation to the requirement to signing a letter, accepting that the position was temporary in nature, the Company has outlined its reasons for this requirement. However, as it has been clarified in Court that acting-up positions are of a temporary nature, the Court believes that this requirement is not necessary.
In relation to the request that the Court direct the Company, in order to comply with the Court’s Determination, to offer the claimant a position in a place easily accessible to the claimant by bus, this is not and never was part of the Determination. While the Court may sympathises with the claimant in relation to difficulties she may face in having to transfer location, the Court does not propose to direct the Company to make such arrangements.
In relation to the acting up position offered the claimant in Dublin, the position offered, as graded, meets the requirements of the Determination. The Court therefore finds that the position as offered by the Company, in terms of the Court's Determination that the employee be appointed to the next acting-up position, is within the remit of the Determination. The Court therefore finds that the respondent has met its obligations of the Determination on this issue.
It is the Court’s view that the respondent should offer the claimant the post again and that the claimant should accept that it meets the requirements of DEE031.
The claimant equally should not be asked to sign a document confirming that this is a temporary post as this is already accepted by all parties.
Subject to the requirement that the respondent again offers the acting up position to the applicant the Court finds that the respondent has fully complied with the conditions outlined in Determination DEE031. It is for the claimant to decide whether she wishes to accept the position.
Signed on behalf of the Labour Court
Finbarr Flood
24th November, 2003______________________
LW/BRChairman
NOTE
Enquiries concerning this Order should be addressed to Larry Wisely, Court Secretary.