LCR20045

SUBJECT:
1. Denial of Promotional Opportunity / Failure to advertise position as per Company Agreement


BACKGROUND:

2. The Company is part of a multinational group and manufactures board games in Waterford. In early 2009 the Company upgraded an Operator to the role of "Senior (Bobst) Operator". The Worker in this case, another Operator on an opposite shift, claims that he was unfairly denied an opportunity to compete for the upgraded position because the Company failed to advertise the position.

The dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Labour Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 27th July, 2010, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 23rd March, 2011 in Waterford.


UNION'S ARGUMENTS:

3 1.The Company/Union agreement provides for all promotional positions to be advertised, this did not happen in this instance.

2. The Worker is doing the same work and has the same responsibilities as his colleague on the opposite shift yet he is not upgraded to the same position.


COMPANY'S ARGUMENTS:

4. 1. The Senior Operator had pushed out the boundaries of his job and is doing work the Claimant does not do. Therefore he was the obvious candidate for the upgrade.

2. The Company admits its failure to advertise the position breached the Company / Union agreement but maintains that the result would have been the same.

RECOMMENDATION:

The case before the Court concerns a dispute over the Company’s failure to advertise a position of “Senior Bobst Operator” at Grade D in 2007. The Union on behalf of one Worker claimed that as a Bobst Operator at Grade C doing similar work on the opposite shift and with similar work experience as the upgraded operator he too should be upgraded.

The Company submitted to the Court that the job in question was evaluated under the appropriate procedure and regraded as Grade D accordingly. The Company accepted that the upgraded position had not been advertised and that this had an impact on the Claimant concerned with this claim, however, it submitted that there was only one position available at Grade D and the right person was appointed to that position. As a resolution to the difficulties encountered for the Claimant the Company made an offer of compensation to him. As an alternative remedy the Company invited the Claimant to apply to have the job upgraded through its job evaluation system.

Having considered the submissions made before the Court, the Court is of the view that the Claimant should give serious consideration to submitting the job he currently holds for a similar evaluation to that conducted in 2007 with one change to the agreed process. The Court recommends that for this particular exercise an agreed independent external person should chair the process.

In the event that the Claimant decides not to opt for the recommended job evaluation, the matter may be referred back to the Court and the Court will decide on the question of compensation to the Claimant concerned.

The Court so decides.



Signed on behalf of the Labour Court



Caroline Jenkinson
14th April, 2011______________________
JFDeputy Chairman



NOTE

Enquiries concerning this Recommendation should be addressed to John Foley, Court Secretary.