FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TEAGASC - AND - A WORKER (REPRESENTED BY BRIAN AYLWARD) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal Of Rights Commissioner's Recommendation r-068317-ir-08/SR.
BACKGROUND:
2. This dispute concerns an allegation that the Worker was unfairly treated in respect of his two applications for promotion. As part of the application process the newly appointed Assistant Director wrote on the Worker's application form that the Worker's 'work organisation and internal customer care need major improvement and is over scored'. The Worker claims that this comment was derogatory and had a negative impact on his promotional prospects. The Worker claims that this damage was compounded by the same Assistant Director being part of an interview panel for a second promotion competition. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 27th April, 2009 the Rights Commissioner issued the following Recommendation:-
- “I recommend that the claimant should be re-interviewed for the Post of Responsibility post by an interview panel, which does not include any of the persons involved in his previous two interviews and in the event that the interview is successful that he should be placed on a panel for appointment to a POR with every expectation that he would be appointed to such a post within a reasonable period of no more than 4 months. In the light of this element of the recommendation there is no need to make any recommendation in respect of the marks awarded to the claimant under ‘Technical Knowledge’.
In relation to the question of the fairness or otherwise of the promotion process, while I note the fact that the process used was agreed between the Trade Union involved and the Employer, I would recommend that the employer look seriously at the observations made above in respect of the process and consult with the Trade Union in that respect.
I accept the submissions made by the claimant that he was not treated fairly by the employer in this matter and that there was some delay by the employer in dealing with his legitimate complaints, and for that reason I recommend that the employer pay him the sum of €1,000.00.
I so recommend”.
- “I recommend that the claimant should be re-interviewed for the Post of Responsibility post by an interview panel, which does not include any of the persons involved in his previous two interviews and in the event that the interview is successful that he should be placed on a panel for appointment to a POR with every expectation that he would be appointed to such a post within a reasonable period of no more than 4 months. In the light of this element of the recommendation there is no need to make any recommendation in respect of the marks awarded to the claimant under ‘Technical Knowledge’.
3. 1.The Assistant Director's comment was derogatory and had a negative impact on the Worker's promotional prospects.
2.If the Assistant Director had any concerns about the Worker's performance he should have raised them with the Worker prior to making the derogatory comments on the Worker's promotion application form.
3.The Assistant Director's actions, and the Employer's failure to deal with the matter, have caused the Worker substantial and continuing financial loss.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer accepts that the views expressed by the Assistant Director on the Worker's application form should have been the subject of a discussion between the Assistant Director and the Worker prior to thier becoming part of the official record.
2. The Employer believes that the Rights Commissioner's Recommendation is fair and balanced.
3. The Employer is not, however, in a position to appoint the Worker to a Post of Responsibility within the period of four months recommended by the Rights Commissioner because of the current moratorium on recruitment and promotions in the Public Service.
DECISION:
The Court heard the submissions of the parties to this Appeal on 28th August 2009, and having considered these believe the Rights Commissioner's Recommendation should be upheld in so far as the Claimant should be given the opportunity of being re-interviewed for the Post of Responsibility, and if successful, appointed to such post when a vacancy arises. The Court also endorses the payment of €1,000 to him for the reasons stated by the Rights Commissioner.
Signed on behalf of the Labour Court
Raymond McGee
9th October, 2009______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.