FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : FÁILTE IRELAND FORMERLY KNOWN AS BOARD FÁILTE (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr. Somers |
1. Appeal against Rights Commissioner's Recommendation IR12223/02/GF.
BACKGROUND:
2. The issue involves a claim by the Union to have the name of the claimant included for a promotional position. The Board argues the absence of a third level qualification automatically disqualifies him. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 3rd April, 2003, the Rights Commissioner issued his recommendation as follows:
"I am satisfied the claimant would be an ideal candidate but for the absence of the credential, unfortunately there is no method involved which would provide him with accreditation for prior learning. I can only advise him to take whatever assistance becomes available to gain the credential and hopefully he will succeed in the near future.
I find for the respondent."
On the 16th March, 2003 the Union 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 on the 4th September, 2003, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3.1 The Claimant, over a ten year period acted in the Investment Advisor position, 1991 -1992 and 1999 and 2001. He carried out a number of the Investment Advisors functions successfully. The Claimant has demonstrated that he has the ability, competency and experience to be considered for this position.
2. The Union claims that while the third level requirement is desirable, it is not essential. The previous job holders were not expected to have third level qualifications for the position.
3. The Claimant was deemed eligible for interview in 2000 but not in 2002, whereby the same criteria applied.
4. The Union believes, notwithstanding it's objections to the unilateral change in criteria, that this lack of consistency is shabby human resources management, and discriminatory towards the Claimant. He was unreasonable denied the right to present himself for interview.
BOARD'S ARGUMENTS:
4.1 The Claimant was not interviewed for the post in 2002 as he did not possess the necessary qualifications or skills required for the post.
2. The Claimant was interviewed for the post on a previous occasion in 2000, he was unsuccessful. He was advised afterwards of the necessary personal development that was required to achieve the role and the various policies that were available to assist him in such progression.
3. When the job was advertised subsequently the requirements necessary for the position had changed. The Claimant did not demonstrate on his application form that he had the necessary skills for the position, and was therefore not shortlisted for interview.
4. The Board has a staff development policy that actively encourages and supports staff members to develop and acquire further education during the course of employment.
5. Promotions are on the basis of suitability and not seniority and staff must demonstrate the necessary requirements for the job. In this instance the Claimant did not have the necessary requirements for the position.
DECISION:
The Court accepts that the agency can determine the qualifications which it requires for the post in question. In that regard it is noted that the qualifications required for the recent competition are substantially the same as those specified in 2000. No objection was taken to those requirements at that time.
However, in the 2002 competition, the claimant was the only applicant. He had previously been interviewed notwithstanding his lack of a third level qualification and he had acted in the vacant post. There are exceptional reasons as to why it was not unreasonable for him to have expected an interview in 2002.
In all the circumstances of this case the claimant should be offered an interview for the post in question. This should be strictly without prejudice to the general right of the Management to accept or reject any candidate and to determine which candidates will be offered an interview.
The Rights Commissioner's recommendation is amended accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
12th_September, 2003______________________
JB/Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.