FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : KERRY COUNTY COUNCIL - AND - TWO WORKERS (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of Recommendations of a Rights Commissioner R-077897-Ir-09/RG & R-077893-Ir-09/RG
BACKGROUND:
2. The issue before the Court concerns an appeal of a Rights Commissioners Decision No's. R-077897-IR-09/RG and R-077893-IR-09/RG. The two workers concerned are placed number one and number two on a panel for Seasonal General Operatives in the Killarney Engineering Area of Kerry County Council. A third worker, further down the panel than the workers concerned was appointed to a caretakers position in Killarney library. The position was originally part-time but the worker was subsequently made permanent in that role. It is the Union's position that their two members should have been offered the post on the basis of their position on the Killarney area panel or that the appointment should have been made by way of competition. The Employers position is that no local agreements were breached in the appointment of the worker as Killarney branch Library Caretaker.
The Union referred his case to a Right Commissioner and her recommendation was as follows:
"On the basis of the evidence I find and recommend as follows:
1. There is no dispute between the parties that seasonal/temporary General Operatives are on a Panel to fill all seasonal work that becomes available and also to fill any permanent vacancies that arise and are due to be filled. It is agreed that (worker named) is No 1, (worker named) is No 2 and (worker named) is No 3 on the panel.
2. (Worker named) who was No 3 on the panel was appointed to fill a permanent fillable vacancy as Caretaker in the Library in Killarney. The position was not offered to either of the two Claimants in contravention of the agreed procedures.
3. The two Claimants (workers named) should remain on the panel for both seasonal/temporary employment and to fill any future permanent fillable vacancies that may arise.
4. I further recommend that Kerry County Council pay the two Claimants compensation of €2500.00 each within six weeks of the date of this Recommendation."
The Union and the Employer appealed the recommendation to the Labour Court on the 11th December, 2009 and 15th December, 2009 respectively, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 13th October, 2010.
UNION'S ARGUMENTS:
3. 1 The workers are aggrieved that the permanent appointment to Killarney Library was not offered to them and that the person appointed to the post was further down the panel than them.Also, the post was not advertised separately so the workers could not compete for it by way of an application and interview.
2 The compensation recommended by the Rights Commissioner is inadequate relative to the loss of a permanent appointment. It only represents a fraction of what the two workers would loose over a protracted period of time.
EMPLOYER'S ARGUMENTS:
4. 1 The Rights Commissioner erred in her interpretation of local agreements on the filling of such vacancies. There is no agreed procedure in place regarding the use of seasonal panels to fill other vacancies.
2 The Council will continue to recognise the status of the workers concerned in relation to the Killarney Roads Area Panel. They retain first refusal of all future vacancies within that area.
DECISION:
The matter before the Court concerns a double appeal by both the employer and the Union on behalf of two workers against a Rights Commissioner’s Recommendation where they sought permanent appointments to the Killarney Area of the Council.
The workers have been employed as seasonal workers within the Roads Division for a number of years and claimed that due to their seniority (1st and 2nd positions) on the Council’s Panel they should have been considered for a permanent appointment as Caretaker in the Library in Killarney when such a position became available in November 2007. It was instead offered to the person placed third on the Panel.
The Rights Commissioner found that by virtue of their position on the Panel either of them should have been offered the position, she recommended that both should remain on the Panel for any available seasonal/temporary employment and to fill any future permanent vacancies which may arise. In addition she recommended a compensation sum of €2,500 to each Claimant.
The Council confirmed the Claimants’ position on the Panel and reaffirmed their entitlements to preferential treatment for any future positions whether seasonal or permanent that may become available in the Roads Division in the future, in accordance with their ranking on the Panel. However, at the time the Library position became temporarily available due to the incumbent’s sick absence, the Council did not have a Panel in place for such a position, so it decided to look to the Roads Panel for relief cover and as the Claimants were already in employment on the Roads it decided to offer it to the person placed at number 3 on the Roads Panel. Subsequently, when the absent Caretaker decided to retire on ill health grounds, the Council offered the position on a permanent basis to the relief person, without contacting the Claimants to ascertain their interest.
Having considered the position of both sides the Court is of the view that in accordance with the Council’s own agreed procedures Claimant No. 1 on the Roads Panel had an expectation, in such circumstances, to be offered first refusal of both the relief work and eventually the permanent Caretaker position.
The Union fully accept that the Caretaker position is now filled, there is a moratorium on recruitment in place and it is not seeking to undo that appointment.
In terms of Claimant No. 1 the Court finds in favour of the Union’s arguments and in the circumstances awards the sum of €5000 to him. However, the Court cannot find grounds to find in favour of Claimant No. 2 as his expectation was entirely contingent on Claimant No. 1 not availing of the Caretaker relief and permanent vacancies. Moreover, as the Union has actively pursued a claim in respect of Claimant No. 1 there can be no grounds to find that he would not have availed of such an opportunity and it would be only in such circumstances that Claimant No. 2 might have established some expectation rights.
The Court accordingly varies the Rights Commissioner’s Recommendation and recommends that Claimant No. 1 should be the paid the sum of €5,000 in respect of his claim before the Court.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
4th November, 2010______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.