FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : LONGFORD COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT SERVICES BOARD) - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appealing against a Rights Commissioner Recommendation R-068924-Ir-08/Sr
BACKGROUND:
2. The issue before the Court concerns an appeal of a Rights Commissioner's Recommendation No R-068924-IR-08/SR. In 2007 the Employer advertised for the post of Senior Executive Technician. A confined competition was held to fill the post. In July 2007 the worker concerned recieved a letter from the employer stating that she had been placed second on a panel for appointment to the post. and that the life of the panel would be one year. In March 2008 the worker became aware of a vacant position and therefore expected to fill that post. The employer indicated to the worker that the panel she was placed on expired following the first filling of the position and that an open competition would be held to fill the current vacancy.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 1st December, 2009 the Rights Commissioner issued his Recommendation as follows:
"While I have considerable sympathy with the position of the claimant, I have concluded that it would create an anomaly and unfairness to other interested parties (both from inside and outside the employment of the Council) to deny them the opportunity to apply for the current vacant post, and it is primarily for this reason that I am rejecting the complaint/claim.
The complaint is rejected and I recommend that the employer proceed to fill the vacancy by way of open competition from all interested parties including the claimant."
On the 15th April, 2009 the Union appealed the Rights Commissioners 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 7th May, 2010.
UNION'S ARGUMENTS:
3. 1 In its letter to the worker in July 2007, the Employer gave her a reasonable expectation that she would be offered any vacancy that arose at Senior Executive Technician before the end of June 2008. This expectation was reinforced by the fact that a Manager's Order was signed some days after the letter confirming the creation of the panel.
2 If the content of the letter was a clerical error, it should have been corrected at the earliest opportunity and not repeated some days later.
3 The creation of a panel from a confined competition was not outside the normal practice of the employer.
COMPANY'S ARGUMENTS:
4. 1 Where a panel is formed from a confined competition, that panel can only be used for the first filling of the position which was advertised. The person placed first accepted the post , thereafter the panel became defunct.
2 The Employer acknowledges that in correspondence with the Worker she was advised the panel would exist for 12 months. It was explained to the Worker that this was a clerical error. The Employer is of the view that the Worker was aware or should have been aware of this.
3 The employer contends that it has not treated the Worker unfairly as the competition was clearly advertised and was in line with department circulars and was agreed with the Union.
DECISION:
The Court has carefully considered the submissions of both parties. The Court is of the view that the Claimant was repeatedly led to believe that she had been placed on a panel for appointment to the next available post at the grade of Senior Executive Technician that arose within the Longford County Council within a twelve month period. The Court acknowledges that this was a genuine error on the part of the Council. In all the circumstances of the case the Court decides that the County Council pay the claimant €6,000 in full and final settlement of this matter.
Signed on behalf of the Labour Court
Brendan Hayes
27th May,2010______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.