FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : AN POST - AND - A WORKER DIVISION : Chairman: Mr Flood Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Recommendation IR11356/02/JH
BACKGROUND:
2. The worker claims that management failed to promote him in accordance with the established process for promotion to Management Grades before 1st July, 2002. The company also failed to promote the worker in accordance with agreed criteria as outlined in the Transformation Through Partnership Agreement (TTPA).
Management rejected the claim and stated that it had treated the worker in a fair and reasonable manner at all times.
The dispute was referred to a Rights Commissioner for investigation and recommendation. On the 24th February, 2003, the Rights Commissioner issued her recommendation as follows:-
Conclusions
" Repeatedly at the hearing the CWU submitted that there was no acting list in Galway. The arrangement which was to be implemented in 1995 regarding such lists was not implemented in the area. The worker did not act up at any time as a Superintendent 2 and it would be unreasonable in my view to expect that he would be automatically appointed to a promotion 2 grades above his substantive grade into a position which he had never performed on an acting basis and for which he never received an acting payment. There was no evidence submitted of any kind which indicated that there was difficulties with the worker's work performance in any way or that the decisions made were in some way personal towards him".
Recommendation
" Based on the submissions made and for the reasons set out in the foregoing I do not find in favour of the worker and do not recommend concession of the claim submitted by the CWU."
(the worker was named in the Rights Commissioner's Recommendation.)
On the 31st March, 2003, the worker appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place in Galway on the 24th September, 2003, the earliest date suitable to the parties.
WORKER'S ARGUMENTS:
3..1. The promotional procedure in An Post revolved around seniority and suitability. If a vacancy occurred in the Superintendent 2 grade, it would be filled by the most senior Overseer and as a consequence the resultant vacancy created in the Overseer grade would then be filled by the senior Actor.
2. The worker contends that he was treated differently and unfairly by the action taken by the company. It was not explained to him why management acted in the way it did.
3. The worker should have been promoted to the post of Superintendent 2 under the terms of the Company/Union agreement.
4. The Company has discriminated against the worker by not appointing him in April, 2000. He has suffered a promotional loss and a financial loss and has been treated unfairly by the Company.
COMPANY'S ARGUMENTS:
4. 1. The company has treated the claimant in a fair and reasonable manner at all times. A restrictionhad been placed on the internal promotion of staff to supervisory positions, pending the outcome of the Transformation Through Partnership Agreement (TTPA).
2. Following a successful ballot of the Agreement, the initial assignment of staff to all positions was completed. This involved promotions in a number of cases where staff had been on the appropriate acting list. The process at Galway resulted in a post at Superintendent 2 level not being filled. It was agreed with the union to advertise the post within the area. The claimant did not apply to be considered for this post.
3. A further Superintendent 2 post became vacant and was advertised within the area. Again the claimant did not apply to be considered for the position.
4. Since the Rights Commissioner's hearing in January,2003, a further vacancy at Superintendent 2 became vacant and was advertise accordingly. The claimant applied for the post and was appointed to the position which he holds to this day.
5. The Court is asked to uphold the Rights Commissioner's recommendation.
DECISION:
The Court is satisfied that the filling of posts undertaken in 2000 for those who were doing relief for a period of time was on the understanding that only those posts that would be in existence after the agreement would be filled. As there was a doubt about the post covered by the claimant he was not one of those upgraded.
The arguments in relation to where the claimant might come in the pecking order, had he been promoted in 2000, centres around the agreement between Management and the Union at that time. Management have argued that they responded to the Union request to fill posts that had been relieved for some period of time and that in doing so they laid down certain criteria under which this would operate. The claimant’s job did not fit the criteria and therefore he was not promoted. The consequences of this were that he was not eligible to be considered for a grade 2 post at the appropriate time.
The Court accepts the Management’s position as outlined. While it is unfortunate for the claimant, there were beneficiaries of this agreement but it is clear that there were caveats on promotion. Not everybody who was undertaking relief at the time got promoted to the posts into which they were relieving.
The Court therefore believes that the Rights Commissioner's decision was the correct one and upholds her recommendation and dismisses the appeal.
Signed on behalf of the Labour Court
Finbarr Flood
15th October, 2003______________________
LW/BRChairman
NOTE
Enquiries concerning this Decision should be addressed to Larry Wisely, Court Secretary.