FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TRINITY COLLEGE DUBLIN - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner Recommendation R-035720-IR-05/DI.
BACKGROUND:
2. The Claimant commenced employment in Trinity College as a Library Assistant in August, 1978. In September, 1996, the Claimant was successful in applying for the post of Library Assistant in the John Stearne Library based in St. James’s Hospital. This is the post she currently holds. Evening work was not a requirement for the Claimant.
- In 2004 the position of Counter Supervisor in the Stearne Library was advertised. The Claimant applied for the post, was interviewed on the 31st March 2004 and in April 2004 she was advised that her application was unsuccessful. As a result of the appointment of the Counter Supervisor the Claimant was advised that she would have to vacate her position and move to Trinity. The Claimant queried whether she would be required to work evenings and was informed by Management that all Library Assistants posts carried a liability to work evening duties. The Claimant did not accept the post on offer within the time-frame specified and the offer was subsequently withdrawn.
The College informed the Claimant by letter dated the 3rd August 2004 that she would now be subject to the permanent transfer arrangements set out in the 2002 agreement. The matter was referred to a Rights Commissioner for investigation and recommendation. The Claimant is seeking to remain in her current role in the John Stearne Medical Library and be allowed avail of the same opportunities as are open to other staff in same/similar grade. On the 21st October, 2005, the Rights Commissioner issued his Recommendation as follows:
Clause 2.4 of the Agreement states that “staff in situe at the date of the signing of the agreement will not be asked to transfer permanently against their will”. This clause clearly states that the claimant will not be transferred from her position in the Stearne Library without her agreement. However, clauses 2.5.4 and 2.5.5 cover a situation that contradicts clause 2.4 as it sets down circumstances under which permanent transfers can be implemented without the agreement of the person concerned. In addition to being at variance with clause 2.4, clause 2.5.4 is also contradicts itself as it states that “such a transfer would be with the consent of the individual concerned as far as is reasonably practical having had regard to the use of the procedures set out in 2.2, 2.3 and 2.4” i.e. the individual “will not be asked to transfer permanently against their will”.
The College confirmed at the Hearing that the claimant was one of only two employees who were subject to involuntary permanent transfers as a result of the restructuring exercise. Clause 2.5.6 provides for the setting up of a Monitoring Committee with the specific purpose of reviewing “the operation of the above arrangements in relation to involuntary permanent transfers”. I believe that the Monitoring Committee should have reviewed the circumstances surrounding the claimant’s transfer as such a review may have eliminated the need for a referral to a third party.
Clause 2.2 provides for where the transfer of a staff member is being considered that “safeguards to staff will be provided in that consideration will be given to arrange of factors (including geography, personal/family commitments, transport arrangements and costs….)” The claimant’s wish not to work evenings directly relates to her domestic circumstances. For the past nine years there has been no requirement for her to work evenings. A transfer to a position that requires evening work will impact on her personal/family commitments and result in increased costs.
While I find that the transfer arrangements set out in the Agreement are open to different interpretations, I am of the view that as there is no longer a position in The Stearne Library at her current grade, the claimant should transfer to a suitable position within the Library Services. As the position that she was first offered was at Executive 2 grade, I recommend that she be either appointed to a position at that grade or be appointed to that grade on a “person to holder” basis. I further recommend that in recognition of the claimant’s domestic circumstances, she be appointed to a position that eliminates/minimises the requirement for her to work evenings.
In recognition that the transfer arrangements set out in the Agreement are open to different interpretations and in recognition that the Monitoring Committee did not review the circumstances surrounding the claimant’s transfer, I award the claimant a lump sum of €4,000”.- On the 1st December, 2005 Trinity College 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 March, 2006.
- In 2004 the position of Counter Supervisor in the Stearne Library was advertised. The Claimant applied for the post, was interviewed on the 31st March 2004 and in April 2004 she was advised that her application was unsuccessful. As a result of the appointment of the Counter Supervisor the Claimant was advised that she would have to vacate her position and move to Trinity. The Claimant queried whether she would be required to work evenings and was informed by Management that all Library Assistants posts carried a liability to work evening duties. The Claimant did not accept the post on offer within the time-frame specified and the offer was subsequently withdrawn.
3.1 The College contends that the permanent transfer clause of the PCW Agreement was applied in a fair and reasonable manner on this occasion.
2. The College agreed to the Union's referral of the case to the Rights Commissioner's Service under the Industrial Relations Act but was disappointed with the outcome of the hearing. The College does not believe a promotion was merited. However, it was prepared to consider the appointment to Executive 2. The Union and the Claimant placed unacceptable conditions on such an appointment and on that basis the College rejected the Recommendation that the Claimant be promoted to Executive 2.
3. The College contends that no promotion is merited in this case and that the Claimant is liable to transfer to the identified post at her current grade. The College, however, does commit to minimising the requirement to work evening duties in this position.
4. The College further contends that the award for compensation should be overturned as it does not believe it is merited.
UNION'S ARGUMENTS
4.1 The Union believes that the Claimant has been treated in an unfair manner by the College with which she has worked for since 1978.
2. The Union believes that the Claimant should be given recognition for her contribution in her current role in the Stearne Medical Library and that she should not be forced to move.
3. The Claimant should have the same opportunities as all other members of staff in the same/similar grades.
4. The Rights Commissioner, having investigated and heard the case put forward by both parties, recommended in favour of the Claimant.
DECISION:
The Court has considered the submissions made to it in this case.
Given that there is an Agreement in existence which was applied to other staff, that a promotion was offered in another area to the Claimant and that the parties, following an invitation by the Court, were unable to come to an agreement in the case, the Court overturns the Decision of the Rights Commissioner and allows the appeal.
The Court so decides.
Signed on behalf of the Labour Court
Raymond McGee
25th September, 2006______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.