FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : FAS - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Recommendation IR21467/04/DI.
BACKGROUND:
2. The appeal concerns a worker, employed as a Clerical Officer Grade 11 with storeman's duties, who has been in the Organisation's employment for 27 years ( inclusive of his ANCO service). The Union claims that the worker has been unfairly treated in promotional competitions within FAS in that the Organisation has not promoted him on several occasions since 1994. The Union claims the this is an unacceptable situation which developed as a consequence of the unnecessary reference to the worker's trade union activity in such promotional contests and the keeping by Management of a secret/secondary file on the worker. The Employer rejected the claim. The dispute was referred to a Rights Commissioner for investigation. On the 28th January, 2005 the Rights Commissioner issued his recommendation as follows:
"Having carefully considered the submissions made by the parties, I have not been convinced that the worker has been denied promotion in the past due to his trade union experience being viewed in a negative manner by the various Interview Panels involved. I am also not convinced that the secret file/diary, disclosed to him with his Personnel File, had a bearing on the decision of the Interview Panels.
I therefore find against the worker's complaint under the Industrial Relations Acts, reference IR 21467/04/DI."
(The worker was named in the Rights Commissioner's Recommendation).
On the 14th February, 2005 the Union appealed the Rights Commissioner's Recommendation to the Labour Court. The Court heard the appeal on the 9th June, 2005.
UNION'S ARGUMENTS:
3. 1. The information stored on the secret /secondary file was wholly untrue, inaccurate and was maintained in an attempt to discredit the claimant as a worker representative and trade union activist.. The file was also used to prevent him obtaining promotion in the past decade. The negative reference to the claimant's trade union activity on the job performance sheets from 1994 to 2001 negatively influenced others in their selection duties and opinions when considering the claimant's application for such posts.
3. The claimant believes that he has been denied promotion by the unacceptable and unfair actions of Management and consequently denied career Grade 10 status resulting in a salary differential of between €5,000 ( Grade 10 top) and €14,000 (Grade 8 top) when compared to his current Grade 11 salary.
4. The fact that Management offered the claimant a Development opportunity, although unacceptable, recognises the principle of wrongdoing and unfair treatment of the worker by the Organisation.
5. It is clear that the claimant was denied promotion and the consistent reference to his trade union activity was a key factor in FAS interview panels arriving at their decisions.
6. The Union requests the Court to overturn the Rights Commissioner's recommendation, grant the claimant Grade 10 status on a personal to holder basis and also to award him adequate compensation.
EMPLOYER'S ARGUMENTS:
4. 1. Management did not keep a secret/ secondary file on the claimant. It was a briefing note for the HR Director in advance of a meeting with the claimant and the Union Branch Secretary. The briefing note set out all the efforts that had been made to provide staff development and the instances when the claimant had not either attended or walked out on such development courses. The briefing note was collated in December, 2003. It post dates the 13 job applications made by the claimant from June,1993 to February, 2003. It could not have had any bearing whatsoever on the claimant's applications for promotion. Any suggestion that the briefing note for the HR Director could have influenced the decision of 13 separate panels over a ten year period is not sustainable .
2. In all his job applications the claimant placed great emphasis on his trade union activity and held it up as indicative of his organisational ability. It is unsustainable to suggest that FAS treated the claimant unfairly because of his trade union activity, while at the same time he himself has emphasised this aspect of his experience at every opportunity.
3. The claimant's work experience in FAS is limited, relative to the candidates against whom he is competing for promotion. Many of these candidates have prior knowledge and/or prior working experience of the sections where vacancies arise. In most cases they have recognised academic qualifications and/or have completed accredited FAS Development Programmes. With the claimant's best interest in mind the HR Director and Branch Secretary both recommended to the claimant that he partake in the FAS Career Development Programme, which is specifically designed to assist staff members in the claimant's position. He rejected this offer and pursued an alternative course that ultimately led to the Rights Commissioner's hearing and the appeal before the Court.
DECISION:
The Court has carefully considered the submissions of the parties to this appeal.
The Court accepts that the entries made by management in the diary/secondary file and on the job performance sheets in relation to the claimant's trade union activity should not have been made. However, the Court cannot identify any discernible connection between these remarks and the claimant's failure to gain promotion.
In these circumstances the Court cannot see any basis upon which it could disagree with the conclusions and recommendation of the Rights Commissioner. Accordingly, the appeal is disallowed and the recommendation of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
28th June, 2005
tod______________________
Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.