FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : IARNR�D EIREANN - AND - A WORKER (REPRESENTED BY NBRU) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal of Rights Commissioners Recommendation IR20373/04/TB
BACKGROUND:
2. The dispute before the Court concerns a claim for compensation by the Union on behalf of it's member for losses suffered as a result of not being promoted to a Gangers position for which he applied, even though he was the most senior applicant. The Union claim that this is not in keeping with Custom and Practice within the Company. The Company rejects the claim and contends that at all times during promotional competitions, best practice is applied.
- The matter was referred to a Rights Commissioner for investigation and recommendation. His findings and recommendation issued on the 8th October, 2004, as follows:
- “The claimant was employed by the respondent in 1990 as a platelayer. In 1998 he was unsuccessful in his application to be appointed a Patrol Ganger in Limerick. He was the most senior applicant and both he and his union considered that he should have been appointed. Over the following years he made other unsuccessful applications for promotion although on these occasions he was not the most senior applicant. With effect from January 2003 he was appointed a patrol Ganger in the Cahir division.
On his behalf NBRU are seeking compensation for the loss of earnings and other benefits which they submit the claimant suffered as a consequence of not being promoted in 1998, and because of the assurances given to him at that time.
Both parties made extensive submission concerning the matter.
Recommendation
Having considered the matter very carefully i do not find in favour of the Union position.”
The worker was named in the Rights Commissioner’s Recommendation.
On the 19th October, 2004, 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 28th January,2005. - “The claimant was employed by the respondent in 1990 as a platelayer. In 1998 he was unsuccessful in his application to be appointed a Patrol Ganger in Limerick. He was the most senior applicant and both he and his union considered that he should have been appointed. Over the following years he made other unsuccessful applications for promotion although on these occasions he was not the most senior applicant. With effect from January 2003 he was appointed a patrol Ganger in the Cahir division.
UNION'S ARGUMENTS:
3. 1. The worker suffered serious loss of earnings as a result of being denied his right to be promoted in 1998. The losses suffered are approx £12,000. He would also have enjoyed payment of expenses during the same period and which are not included in this sum.
2. During this interim period also the Company agreed a "new deal" for Permanent Way grades and Gangers, which included payment to Gangers for integration into the Mobile Gangs. This payment amounted to £5,500 and the worker would have received this had he been given his rightful promotion. This is also being claimed at this time.
3. The Union is requesting the Court to recommend that the worker's appeal should succeed and that he be awarded the compensation claimed for the losses he suffered.
COMPANY'S ARGUMENTS:
4. 1. The worker was at all times treated fairly in respect of his various promotional applications and indeed in every other respect.
2. On occasions where the worker was unsuccessful in selection competitions, the successful applicant proved during competition to be the most suitable and developmental feedback was afforded to the worker.
3. Following strong representations, the worker fulfilled his immediate aspirations and the Company asserts that this appointment brought closure to the matter.
DECISION:
The Court has carefully considered the submissions of the parties to this appeal. Having regard to all circumstances the Court has come to the view that the conclusions and recommendation of the Rights Commissioner is reasonable and ought to be accepted.
Accordingly, the Court affirms the recommendation of the Rights Commissioner and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
15th February, 2005______________________
JO'CChairman
NOTE
Enquiries concerning this Decision should be addressed to Joanne O'Connor, Court Secretary.