FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : AER LINGUS - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Carberry Worker Member: Mr. Somers |
1. Appeal against Rights Commissioner's recommendation IR11917/02/GF.
BACKGROUND:
2. The appeal concerns a worker who has been employed by the Company since 1969. In 2002 he applied for a promotional post in the Cargo Department. The worker was not successful in his application and subsequently indicated that he was unhappy with the outcome of the competition. He sought feedback from the Management and following meetings between the Union and Management, the Union indicated its dissatisfaction with the process and referred the issue to a Rights Commissioner for investigation. On the 25th September, 2003 the Rights Commissioner issued his recommendation as follows:
"I have given the matter careful consideration and on the basis of the evidence presented I cannot come to the conclusion that the procedures amounted to being unfair. I decide in favour of the respondent company."
On the 28th October, 2003 the Union appealed the recommendation to the Labour Court. The Court heard the appeal on the 28th January, 2004.
UNION'S ARGUMENTS:
3. 1. Had the scoring of the candidates been consistent and objectively done the claimant would have been equal to and indeed ahead of one of the successful candidates.
2. The claimant was unfairly and unreasonably denied a promotional opportunity for the post that he applied for.
3. A formula should be produced that will give the claimant protection against the losses of being deprived of the opportunity he has earned and deserves.
COMPANY'S ARGUMENTS:
4. 1. The claimant, along with the other applicants for the staff vacancies, was the subject of a fair and equitable selection process that was conducted in accordance with Staff Regulations.
2. The selection process employed by the Company is a rigorous and highly competitive system, and these procedures for selection have been the subject of scrutiny by the Court in the past (LCR11139 and AD 9726 Refer). They were again the subject of a Rights Commissioner's recommendation in September, 2003 who found in the Company's favour. The Company asks the Court to uphold that recommendation.
DECISION:
Having considered the written and oral submissions of the parties, the Court is of the view that the methodology used in the selection process has certain flaws, which could give rise to some ambiguities and inconsistencies.
These flaws are evident in the Supervisory Assessment Rating system and in particular the ambiguity that is evident in the aggregate score bands, which apply. The Court also holds the view that attaching equal weight to a candidate's absence record with their performance at interview and their supervisor's assessment is somewhat unbalanced. Equally, the markings awarded for attendance record do not seem to be reflective of the true nature of such absences, i.e. if "some improvement [was] required" by the employer, then the candidate should have been notified of this situation and not wait until it becomes the subject of a lower rating assessment for promotion.
The Court is of the view that, in light of his long record of satisfactory service and as the claimant has applied for this position in the past, greater effort could have been made to assist the claimant in terms of future applications for the same post.
In all the circumstances of this case, the Court recommends that an award of compensation is the appropriate way of addressing the issue. The Court awards a payment of €3,000.
The Rights Commissioner's recommendation is hereby overturned and the appeal upheld.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
4th February, 2004______________________
todDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.