FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DONEGAL COUNTY COUNCIL REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT SERVICES BOARD (LGMSB) - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Filling of vacancy
BACKGROUND:
2. The dispute concerns the filling of a vacancy that became available in the Council's Water Division in Letterkenny. The worker had been employed on a number of temporary contracts from April, 2005, to August, 2008, with the Roads Division of Donegal County Council. He was placed 4th on a panel of 31 applicants. The contracts ranged from 5 - 7 months. His case is that he should have been appointed to a temporary post which existed in the Water & Environment Section from 3rd June, 2008, to 30th November, 2009. He claims that due to his higher position on a temporary panel established for the Roads Division he should have been offered the post before another colleague who was appointed to the position. The Council's case is that it must appoint the most suitable person to the post, taking into account the person's proximity to the work location amongst other considerations.
The worker referred his case to the Labour Court on the 7th September, 2009, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 26th November, 2010, in Donegal town.
WORKER'S ARGUMENTS:
3. 1. The worker was told verbally in December, 2005, that he was next on the panel to be offered any position that might arise. This did not happen in regard to the position in question.
2. The worker was willing to move from his residency in Falcarragh to the Letterkenny area in order to take up the position. He had worked in the Letterkenny area since he began working with the Council in 2005 so it was not an issue.
COUNCIL'S ARGUMENTS:
4. 1. The worker was placed on a panel for the Roads Division not the Water & Environment Section where the position in question was located. The post was always a temporary one and was filled on that basis.
2. The worker was informed that the Council needed someone living in close proximity to the work area to fill the post so that he could be available for emergency work if required. At the time the worker lived 50 kilometres away.
RECOMMENDATION:
The matter before the Court concerns a claim by a Worker employed on a seasonal basis within the Roads Division of the Council from April, 2005, that due to his seniority on the Council’s Panel he should have been considered for a temporary appointment in the Water and Environment Division in Letterkenny when it became available in June, 2008, during the currency of his final contract with the Council. It was instead offered to a person placed lower on the Panel.
The Council submitted that as an essential service the post in the Water and Environment Division required the post-holder to reside in close proximity to the work area and it was on that basis that the Council filled the post.
The Court notes that during the currency of the Claimant’s employment, his seasonal contracts generally commenced around April and were due to cease in September, however, they were extended each year to December except in 2008 when he was made redundant in August 2008 due to lack of resources.
The Court notes that the temporary contract in the Water and Environment Division in Letterkenny extended from 3rd June, 2008, to 30th November, 2009.
Furthermore, the Court notes that the person appointed to the post in the Water and Environment Division in Letterkenny lived nearby and the Claimant lived 50 kilometres away. The Claimant did point out to the Court that he would have been willing to move location if he had been offered the position.
Having considered the oral and written submissions of both parties the Court has taken account of the fact that (a) the temporary contract in question became available in June 2008 when the Claimant was already on his seasonal contract for that year and (b) it was an essential requirement that the post-holder reside in close proximity to the work area in Letterkenny. There was a seasonal nature to the Claimant’s work pattern and an expectation that his contract would be extended/renewed. In the circumstances, it would seem reasonable that the Council offered the temporary contract to a local person due to the emergency nature of the work involved in the Water and Environment Division. Accordingly, the Court does not find in favour of the Worker’s claim.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
20th December, 2010______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.