FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : RTE - AND - A WORKER (REPRESENTED BY 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 R-046998-Ir-06/Jt
BACKGROUND:
2. The Union's claim, on behalf of its member, is that the Employer did not abide by procedures and custom and practice in relation to a competition for permanent positions within the Company. TheWorker concerned was employed with the Company since 2004, firstly on a casual basis and then on a fixed-term contract. In August, 2005 the worker applied for a permanent position as advertised. It is the Union's claim that the interview lasted no more than eight minutes and his previous experience within the Company was ignored. The Company maintains that recruitment in general is by means of public competition and that selection is based on merit at all times.
The matter was referred to the Rights Commissioner for investigation and recommendation. On the 25th September, 2007, the Rights Commissioner issued his Recommendation as follows:
"I have examined the submissions and exchange of documentation that has taken place since the hearing. Also I have considered the arguments advanced in the course of the hearing. I have examined the grievance procedure and the scores of the interview and I have considered the fact that there was 154 applications reduced down to 42 people interviewed including the claimants. This would have made appointments to the positions very competitive.
Given that RTE is a public body they must adhere to proper procedure and format in relation to appointments to positions within the organisation. I therefore accept that each candidate was allotted the same amount of time and interviewed at the same format during each interview, therefore I do not find the claim well founded and therefore it falls."
On the 19th October, 2007 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 26th March, 2008.
UNION'S ARGUMENTS:
3. 1 The work performance of the Claimant had been exemplary for the period of his employment. It is only fair and reasonable to expect the employer to take account of this service. The skills set acquired by the claimant was not referred to at his brief interview.
2 The Employer made no attempt to enquire with the Claimant's immediate supervisors as to the Claimants work record despite the fact that the Company's policy and procedures manual required that such an enquiry be made. The recognised custom and practice operating in the area up to 2005 had been that fixed term contracts were offered to individuals who worked in RTE at the time the post became available. There are at least six similar employees who were appointed without going through public competition.
3 It is the strongly held belief that the reason the Claimant was not employed by RTE on a permanent basis was that he had been caught up in an on-going dispute concerning the Company's misuse of casual irregular contracts prior to the binding Transformation Agreement.
COMPANY'S ARGUMENTS:
4. 1 Holding a public competition is consistent with RTE's policies as agreed with the Unions and RTE reserves the right to appoint the most suitable person to positions within the organisation.
2 The competition was fair and in compliance with RTE policies. All candidates including the Claimant were allocated 30 minutes for interview and the format of questioning was the same also. The scoring makes it clear that the Claimant did not achieve the required standard.
3 The Claimant's employment with RTE expired in line with his fixed term contract. No concerns were expressed by the Claimant about the competition process until he discovered he had been unsuccessful.The Company's then current policy and procedures manual did not require an enquiry to be made as to the Claimants work record in this instance. The claim that there was otherwise such a custom and practice was denied by the Company.
DECISION:
It is apparent that the absence of clarity as between the Union and the Management on certain procedural matters governing the conduct of the competition contributed, in part at least, to the difficulties giving rise to this dispute.
The Court recommends that the parties should now review these procedures with a view to reaching agreement, if possible, on their future application.
Having regard to all the circumstances of this case, and for the purpose of bringing finality to the issue, the Court recommends that each of the Claimants should receive an ex gratia payment of €6,500 in full and final settlement of their claims.
The recommendation of the Rights Commissioner is amended accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
8th May, 2008______________________
DNChairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.