FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : AN POST - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal of the Recommendation of a Rights Commissioner R-059437-IR-07/JOC
BACKGROUND:
2. The worker's case is that he was disadvantaged by the methodology used by An Post to fill three vacant patrol Staff positions in Cork. The Company had been trying to fill the vacancies since 2004 following a dispute between two local branch unions (the Cork Postal Outdoor Branch and Cork Postal Drivers' Branch). The Communications Workers' Union (CWU) was unable to resolve the issue to the satisfaction of both Unions and in October, 2007, an agreement was brokered between An Post and the CWU. The post were to be advertised amongst all postpersons in Cork and filled on the basis of seniority and suitability. Two of the three posts were reserved for two employees who had been acting in the grade for a considerable time, effectively leaving one post. The posts were filled in December, 2007, but the worker concerned did not apply for the one available post. The worker's case is that all three posts should have been filled on seniority and suitability.
The worker referred his case to a Rights Commissioner whose recommendation was as follows:
"I recommend that the claimant be placed on a panel to fill any future suitable positions that may arise and that he receive a gesture of €2000, without precedent, in full and final settlement of his case."
Both parties appealed the 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 25th February, 2009, in Cork.
WORKER'S ARGUMENTS:
3. 1. It has always been the case that vacancies were filled by way of seniority and suitability. The Company's claim that there was a list of people to fill the panel cannot be proved as it cannot produce any such list.
COMPANY'S ARGUMENTS:
4. 1. The worker did not appear to have any interest in taking up the one vacant position as he did not even apply for it. He was, in effect, acting on behalf of the Drivers' Branch of which he was Branch Secretary at the time.
2. The award of €2000 is inappropriate as the worker is not at a loss either personally or professionally as a consequence of the collective agreement between the CWU and the Company.
DECISION:
Both parties appealed the Recommendation of the Rights Commissioner, which recommended that the worker should be placed on a panel for future vacancies and should be paid a gesture of goodwill payment of €2000.
The worker stated that he was disadvantaged by the methodology used by the Company to fill 3 vacant Patrol Staff positions in Cork which it endeavoured to fill in 2004.
Having considered the oral and written submissions of both parties the Court notes that certain records are no longer available which could have been assistance to the Court in this case.
The Court notes that following a disagreement between two branches of the Union on the filling of the vacancies, eventually an agreement was reached at national Union level in 2007 and the vacancies were filled accordingly. The Court notes that while this agreement took account of the custom and practice in the Cork area, it specifically reserved two of the posts for two named workers, both of whom had been acting in the roles for a considerable period of time. Due to his length of service the reservation of these posts gave rise to the claimant’s grievance.
The Court notes that the 2007 agreement related to the filling of the three specific vacant posts at that time and that since then the customary method of filling vacant posts continues to be applied.
The Court is satisfied that the 2007 agreement was entered into to deal with a specific set of circumstances pertaining at that time and that the Company correctly applied the agreement and therefore upholds its position and rejects the worker’s appeal. The Rights Commissioner’s Recommendation is overturned.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
9th March, 2009______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.