FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : PENNEYS (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal of Recommendation of a Rights Commissioner R-095391-IR-10/JW.
BACKGROUND:
2. The case before the Court concerns a claim by the Union on behalf of its member currently employed as a part-time retail sales assistant in relation to her previous applications for a full-time position within the Company. The Worker has been employed by the Company since 2007 until the present date. The Union contends that the Employer has refused the Worker the opportunity to attend interviews for full-time positions which arose in the Company in 2008 and 2009 and as a result has denied the Worker the possibility to progress within the Company. The Union further contends that since the commencement of her employment with the Company, the Worker has never been approached by Management in relation to any breach in policies relating to performance, attendance and time-keeping and that Management has never provided the Worker with a valid explanation as to why she was unsuccessful in reaching the interview stages for the vacancies advertised. The Union, on behalf of its member, is seeking compensation on the basis that the Worker was denied the opportunity to increase her earnings through gaining full-time employment. Management disputes this and maintains that, in line with the Company's equal opportunity in employment policy, the Worker was at all times given fair consideration in her applications for the positions advertised. The matter was referred to a Rights Commissioner for investigation and recommendation.
On the 6th January 2011, the Rights Commissioner issued his Recommendation as follows:
"The company invited applications for full-time sales positions in 2008 and 2009. This invitation notice was put on the staff notice board. The notice did not specify the-
- Basic skills required
- Experience required
- Track record required of applicant in relation to time keeping, attendance and work performance
- That short listing of candidates may apply
I recommend that the employer should, in all future job applications, clearly outline the basic requirements for positions being advertised".
On the 8th February 2011, the Worker appealed the Rights Commissioner's 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 23rd June, 2011.
UNION'S ARGUMENTS:
3. 1. The Employer has continuously refused the Worker the opportunity to attend interviews for full-time positions.
2. The Worker has never been sanctioned in areas such as performance and punctuality and has not been provided with sufficient feedback explaining why she was unsuccessful in reaching the interview stages.
3. The Worker is entitled to compensation for the loss of earnings on the basis of her not gaining full-time employment.
EMPLOYER'S ARGUMENTS:
4. 1. The Worker has been treated fairly at all times during her applications for a full-time position and was given feedback after she was deemed unsuccessful in reaching the interview stages.
2. Due to the large volume of applications received for a small number of positions it was necessary for the Employer to put a short-listing procedure in place when these vacancies arose. The Worker's applications were considered however she was not short-listed for interview.
3. The Employer contends that there is no compensation owing to the Worker in these circumstances.
DECISION:
The matter before the Court concerns the Union’s appeal on behalf of a Worker of a Rights Commissioner’s Recommendation which dealt with her claim concerning the Company’s selection process for the filling of full-time posts. The Union submitted that the Company had acted unfairly in the selection process and denied the Appellant an opportunity to improve her earnings and give her greater certainty going forward. The Company submitted that the Appellant’s applications were appropriately considered. The Rights Commissioner recommended that the Company should improve its process to clearly outline the basic requirements for positions being advertised. The Worker appealed the Recommendation on the basis that the Rights Commissioner had failed to award compensation.
Having considered the submissions of both sides the Court is of the view that while the different selection processes entered into in 2007, 2008 and 2009 were the cause of some confusion, the Court is satisfied that there was nomal fideson the part of the Company. The Court notes that the Company has since introduced a new more transparent process which the Union is satisfied with.
The Company told the Court that the Appellant was well regarded by management and considered a very valuable employee and this has been recognised in the increased level of hours she has been allocated since September 2009.
In all the circumstances of this case the Court can see no merit in the claim for compensation for the Company’s handling of her applications in 2008 and 2009. Accordingly, the Court concurs with the Rights Commissioner’s Recommendation and does not uphold the appeal.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
29th June 2011______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.