FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : AER RIANTA - AND - A WORKER (REPRESENTED BY TECHNICAL ELECTRICAL AND ENGINEERING UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation IR11019/02/TB.
BACKGROUND:
2. The worker was originally appointed as an electrician. In March, 1999, he was appointed on a temporary basis as a Clerk of Works for one year but he actually continued in the role until early 2002. He worked in 2 different sections - firstly in the Building Services Section and later on the Six Bay Project. There were 3 Clerks of Work positions in the Building Services Section, including the worker. When he choose to transfer to the Six Bay Project in August, 1999, his position was filled on a temporary basis. In March, 2001, the 3 Clerks of Work in the Building Services Section asked for their posts to be made permanent and Management agreed to this in May, 2001. One of the positions made permanent was the one the worker had left in August 1999 to move to the Six Bay Project. The Union's case is that worker was not made aware that three positions were being made permanent. It believes that with his qualifications and length of service he should also be made permanent.
The case was referred to a Rights Commissioner who recommended that the worker should be the leading candidate for any Clerk of Works position that arose in the next 6 - 9 months. If no position arose, the matter could be referred back to the Rights Commissioner. He also recommended that the worker be awarded €1500. When no position arose within the time limit the case was referred back to the Rights Commissioner and his second recommendation was as follows:-
I recommend that the claimant be paid €5,000 in full and final settlement of this matter. The payment does not disqualify the claimant from applying for any suitable vacancies, which might arise in the future.
The Union appealed the recommendation to the Labour Court on the 2nd of March, 2004, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 15th of April, 2004.
UNION'S ARGUMENTS:
3. 1. The money recommended by the Rights Commissioner does not in any way compensate the worker for his financial losses to date.
2. The worker should be "red-circled" at the appropriate grade until an appropriate permanent position arises.
3. The case has been very stressful for the worker, both at a family level and amongst his colleagues.
COMPANY'S ARGUMENTS:
4. 1. The worker was well aware that the original Clerk of Works position was temporary. It was a career development opportunity and increased his earning powers for the period of the contract.
2. He moved to the Six Bay Project on a voluntary position which extended the term of his temporary contract.
3. At no time did the worker seek to return to his original position in the Building Services Section when it was under consideration for permanency. The Company cannot believe that he would not have been aware that the positions were being made permanent.
4. The Company has accepted both of the Rights Commissioner's recommendations which will give the worker an award of €6,500.
DECISION:
The Court has carefully considered the submissions of the parties to this appeal. Whilst it may have been more appropriate to advertise the posts at issue this was not the agreed or customary method of filling such positions. The Court understands the claimant's sense of grievance at what occurred but it cannot find that the Company was fully responsible for the events giving rise to this grievance.
In the circumstances, the Court concurs with the recommendation of the Rights Commissioner. Accordingly, the appeal is disallowed and the recommendation affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
26th April, 2004______________________
CON/MB.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.