FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : OLYMPUS DIAGNOSTICA GMBH (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal Against Rights Commissioner's Recommendation R-043242/Ir-06/Pob.
BACKGROUND:
2. The Worker commenced employment with the Company in December 1991. Following restructuring at the Company, the Worker was internally moved to another section in October 2004. The Worker made the move under protest. The Union tried to come to some agreement with the Company over the issue but this was unsuccessful. A vacancy arose in the Worker's previous section in April 2006. Due to the tragic circumstances in which the vacancy came about, the Company in agreement with the Shop Steward did not advertise the position on any notice board as per the recruitment procedure. In May 2006 the Union wrote to the Company setting out their position that the vacancy should be filled on seniority by its member who was forcibly redeployed from this section previously. The Company accepted a number of applications for the vacancy via word of mouth, including the Worker's. The candidates were interviewed at the end of May 2006 and an external applicant was appointed by the Company. It is the Company's argument that they appointed the most suitable candidate and feedback was given to those that were unsuccessful.
The matter was referred to the Rights Commissioner for investigation and recommendation. On the 27th October, 2006 the Rights Commissioner issued his Recommendation as follows:
"Following extensive discussions the Company conceded that the claimant will be advised why he did not get the job previously, what courses he has to complete to ensure he has the required skills to get a warehouse job if advertised again, and that on completion of these courses he will be given first option of a warehouse job when available in the future. The Union rejected this position and maintained that the claimant should be appointed to the position immediately and the current incumbent moved out of the position. The parties were advised that there could be legal obstacles to make this happen. I feel that the offer from the company is a reasonable one and fair to all concerned. I recommend that the Union give serious consideration to this offer."
On 4th December, 2006 the Worker 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 17th October, 2007.
UNION'S ARGUMENTS:
3. 1 When the Company was restructured, the Worker should not have been affected. He worked in the warehouse and this section was not affected by restructuring. He moved under protest. The Company blatantly ignored the proposals put forward by a mediator appointed by them which would have resolved the issue.
2 The Company ignored the Union's letter of the 14th April 2006 in filling a subsequent warehouse vacancy that existed whilst the issue was in process. This flies in the face of good industrial relations practice.
3 The Company argued that the best person for the job would be selected. The worker has over 11 years experience in the job and an unblemished record which would put him in this category. The Company did not apply its own policies in relation to advertising the vacancy. The policy states that external recruitment can take place when it is considered that there is no internal candidate with the required level of experience and skills or when a vacancy has been posted internally and no suitable candidate has emerged. It is incredulous that someone with over 11 years experience in the position would be deemed unsuitable
COMPANY'S ARGUMENTS:
4. 1 The Company has the exclusive right to plan, organise and manage its business to achieve and maintain efficiency. It has always been the Company's policy to employ the person who they consider to be the most suitable for the position. This policy has consistently been applied. Seniority would only be considered if all things were equal.
2 The Worker's position is that he had a right to return to the warehouse. This was never agreed nor implied at any stage of the previous restructuring process. The Company continued with its consistent policy of open competitions for vacancies. The process followed was fair and reasonable and the Worker does not dispute this.
3 The Company is committed to ongoing training and development of staff. The Worker has received a refresher training course in an area that is not currently part of his work. This demonstrates the Company desire to keep his skills updated. The Worker has also taken part in other training courses related to his role in the Company.
DECISION:
The Court has carefully considered the oral and written submissions of the parties.
The Claimant feels that he has been unfairly treated given his long previous service in the warehouse. His view is that seniority was used to move him out but did not apply to his reinstatement. The Court's view is that the Company has dealt with this matter in a somewhat inflexible and occasionally inconsistent manner, especially after having engaged an independent mediator and rejected his proposals. It is the view of the Court, however, that to remove the incumbent at this stage, as requested by the Union, would be to create a further difficulty and to compound the Claimant's disappointment.
Accordingly, the Court's view is that the Claimant should receive all necessary training and, given his previous service and record, be appointed to the next vacancy occurring in the warehouse. The Court so decides and varies the Recommendation of the Rights Commissioner accordingly
Signed on behalf of the Labour Court
Raymond McGee
3rd December, 2007______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.