FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : GLANBIA - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal Against Rights Commissioner's Recommendation No. R-036813
BACKGROUND:
2. The appeal concerns a worker who is employed by the Company since 1998. After a period of six months he was promoted to the post of Machine Operator and also worked as a Relief Storeman on Saturdays. In 2000 the need arose to formulise the packaging store in two shifts (Shift A and Shift B). Two full-time Storemen were employed on Shifts A and B and the claimant operated as relief Storeman with another named employee as second Relief Storeman on Shift A. In 2001 a shift Storeman (Shift B) left the employment and his position was advertised. The claimant did not apply as he wished to remain as Relief Storeman on Shift A. A named employee was appointed to the full time position (Shift B) and the Union claimed that sometime later another employee was then appointed as relief Storeman on Shift A without any advertisement thereby displacing the Claimant as first Relief Storeman on Shift A. There are two named employees acting as first and second relief Storeman on Shift A..The Claimant is still doing this job but is now third Relief Storeman. The Union claims that he should be appointed as first Relief Storeman. Management rejected the claim. The dispute was referred to a Rights Commissioner for investigation. On the 11th May, 2006 the Rights Commissioner issue her recommendation as follows:
Conclusion.
The employer has not satisfied me that proper procedures were followed in the filling of the relief storeman position formerly held by the Claimant....it is not clear why the position held by the Claimant for an extended period should have been advertised in the first instance and certainly not without a formal discussion with him or his trade union. If the position held by the Claimant was advertised, I can see no reason why he would not have objected if he had understood that he would be displaced or alternatively why he would not have applied, as he had never indicated any desire to cease acting in the position. Given the passage of time, I do not consider it appropriate the Claimant be returned to his position and consequently to displace another employee. However, he should be compensated for his loss. Compensation should be such as to ensure that in the future in the filling of vacancies management will follow proper and open procedures.
Recommendation.
Based on the submissions made and the reasons set out in the foregoing I recommend that the Claimant receive €4,000 compensation in settlement for the loss of his position as relief storeman.
(The worker was named in the Rights Commissioner's Recommendation)
On the 16th June, 2006 the Union appealed the Rights Commissioner's recommendation to the Labour Court. The Court heard the appeal on the 18th October, 2006.
UNION'S ARGUMENTS:
3. 1. The Company by its actions was in breach of Section 21 of the Comprehensive Agreement on Promotions and Transfers. The Claimant feels that he should be appointed as first Relief Storemen he was first trained as a Relief Storeman and senior to the other Relief Storemen.
2. There is no extra pay for doing this job and the Claimant did not bring the case seeking money. The Claimant is still doing this job but only as third Relief Storeman.
3. The full-time Storeman will be retiring within one year. This is a permanent position which the Claimant wishes to take up based on his entitlement within the terms of the Company Union Agreement and previous precedents established within the Company.
COMPANY'S ARGUMENTS:
4. 1. The Claimant has applied for other positions within the plant and has successfully been appointed to the position of Whipped Cream Operator and Relief Shunter.
2. The Claimant was never appointed to and did not apply for the positions of Storeperson or Relief Storeperson. The Company cannot retrospectively appoint the Claimant to any position in the Packaging Store. In the event of a vacancy arising in the future in the Packaging Store he can apply for the position, be interviewed, which is the same process he went through for two other positions in the plant and is the same process that the incumbent Relief Storemen went through.
DECISION:
The Court has carefully evaluated the submissions of the parties to this appeal. The Court concurs with the approach which the Rights Commissioner adopted towards the case. In particular the Court feels that there is a compelling need for Management to ensure that proper and open procedures are followed in the filling of future vacancies.
It is noted that the Claimant has been confirmed as third relief. Equally, two other workers have been confirmed as first and second relief. In these circumstances the Court, in common with the Rights Commissioner, does not consider it practicable to concede the Union's claim and provide for the appointment of the Claimant to the position of first relief. Accordingly, the Court believes that the Recommendation of the Rights Commissioner is reasonable and appropriate in the circumstances.
It is the decision of the Court that the Recommendation of the Rights Commissioner be affirmed and the appeal disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
1st November, 2006______________________
todChairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.