FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : GALWAY COUNTY COUNCIL (REPRESENTED BY LGMSB) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr O'Neill |
1. Appeal of Recommendation of Rights Commissioner No: r-070582-Ir-08- MH
BACKGROUND:
2. This case concerns a dispute between Galway County Council (represented by the LGMSB) and SIPTU in relation to a claim for a firefighter employed by the Council to be upgraded to the sub station officer post. The Union's position is that a competition was held for the post and successful applicants were notified while the claimant was absent on sick leave. The Union contends that the worker was treated unfairly when the competition was not delayed to facilitate his participation in the competition.
Management's position is that the worker did not request that the competition be delayed and that he did not raise any issues until the posts had been offered to the successful applicants. Management further contends that the responsibility for seeking a deferral of a competition rests with the worker and as this did not happen and as the posts were already offered to the successful applicants, there is no merit in the worker's claim.
The issue was subsequently referred to a Rights Commissioner for investigation. His Recommendation issued on the 7th April, 2009 and recommended that the worker be paid and receive the benefits of the sub station officer grade with immediate effect on the basis that itthat it had indicated in previous correspondence that it could hold the interview at a later date and that it was open to the employer to write to the worker to convey this option to him.
On the 22nd April, 2009 the employer appealed the Rights Commissioner's Rcommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 29th September 2010.
MANAGEMENT'S ARGUMENTS:
3 1 The worker was entitled to seek a deferral of the competition on the basis of his absence on sick leave. He did not formally seek a deferral and only raised the issue on his return to work after the competition had been concluded and posts offered to successful candidates.
2 After the competition had concluded and offers of appointment had been made to the successful candidates, management were not in a position to displace one worker in favour of another who had not completed the process.
UNION'S ARGUMENTS:
4 1 The worker is a senior firefighter and has previously acted up in the sub station officer post. The posts in question had not been taken up on his return to work and it was then that the worker formally raised the issue with management.
2 The worker was led to believe that his participation in the process could be delayed as a result of his absence but this did not happen.
DECISION:
This matter came before the Court pursuant to the Industrial Relations Acts 1946-2004 and, accordingly, must be considered by application of normal industrial relations principles.
In the Court’s view the Council was remiss in not asking the Claimant when he might be available for interview before excluding him from the competition. There are, however, countervailing factors that must be taken into account. The Claimant should have sought a reasonable deferment of his interview, and indicated when he might be available to attend, rather than simply informing the Council of his unavailability. Moreover, the Claimant made no complaint at not being included in the competition until his return to work eight months later and after the posts in issue had been offered to others. In that regard the Claimant had clearly acquiesced in the Council’s decision not to include him in the competition.
Having regard to the foregoing the Court has come to the view that there was fault on both sides for what occurred. The Court does not believe that the recommendation of the Rights Commissioner is reasonable in these circumstances.
On that account the Claimant should be paid compensation in the amount of €3,000 in full and final settlement of his claim.
The appeal is allowed and the recommendation of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
26th October 2010______________________
AHChairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.