FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SOS KILKENNY LIMITED (REPRESENTED BY POE KIELY HOGAN LANIGAN SOLICITORS) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal of Recommendation of a Rights Commissioner R-091506-Ir-10/JC.
BACKGROUND:
2. The worker commenced employment in March, 2007 as a Social Care Worker with the Company, which helps people with learning disabilities. The Union claims that he had acquired a number of relevant qualifications prior to his appointment. In October, 2007, a position of Household Premises Manager became available and the Residential Manager was promoted to the position. The worker in turn was one of two people promoted to the position of Assistant Residential Manager (ARM) on a fixed-term contract. In December, 2008, the Household Premises Manager returned to her previous post and in February, 2009, the second ARM resigned. The worker concerned claims that he was told by management that he would retain his ARM position but was told shortly afterwards that the post would have to be re-advertised. Interviews took place in April, 2009, and the worker was informed that he was unsuccessful. The Company's case is that worker was employed on a fixed-term contract for one year and that at no time was he guaranteed that he retain his ARM post. The worker referred his case to a Rights Commissioner whose recommendation was as follows:-
"The claimant commenced working for the respondent as a Social Care Worker on a part-time relief basis in March 2007. Subsequently, a position became vacant as a result of the Residential Manager's promotion to Household Premises Manager. The respondent made it clear to the claimant at that time that if the Residential Manager returned to her post that he would revert to the grade of Social Care Worker. The respondent decided to fill two Assistant Residential Manager positions and the claimant was appointed to one of those. The Residential Manager did return to her post, as the project to which she had been appointed did not proceed due to the economic downturn. The financial restraints imposed on the respondent resulted in a reversal of their plans for extending their services and staff numbers. The respondent decided to retain only one of the Assistant Residential Manager posts and that post was advertised and another applicant was appointed. The respondent facilitated the claimant by continuing to keep him at the Assistant Residential Manager level in an acting capacity to the end of October 2009 and he provided cover for colleagues absent on annual leave, sick leave etc. The management gave the claimant access to opportunities to earn additional income for a period of time, however, due to the financial constraints imposed on the respondent those opportunities dried up and the claimant reverted to his original category as a Social Care Worker effective February 2010. When he reverted back to his original categorisation the respondent appointed him in a permanent capacity. The claimant was appointed as an Assistant Residential Manager on a fixed term basis and he was not assured of a permanent contract in that capacity, on the contrary, he was told that he would revert to his original category in circumstances that did arise. The claimant did not accrue a legal entitlement to a permanent contract as an Assistant Residential Manager. I find against the Union's claim that the claimant be re-instated as Assistant Residential Manager or that he be given a suitable alternative position. The manner of filling the Assistant Residential Manager post was not handled well, in particular the confused signals given to the claimant before management finally decided to advertise the position in March 2009. The claimant has over 3 years experience working for the respondent and in recognition of his service as Assistant Residential Manager, I recommend that he be placed on the third point of the Social Care Worker scale with effect from 2nd November 2009. This recommendation is personal to the claimant in recognition of the particular circumstances of his case and without precedent".
The worker appealed the recommendation to the Labour Court on the 28th December, 2010, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 3rd November, 2011, in Kilkenny. The following is the Court's decision:
.
DECISION:
The Court has carefully considered the submissions of both parties in this case.
The Court finds that there is merit in the Union's claim. Accordingly, the Court, in full and final settlement of this dispute, recommends that, with effect from the date of this Recommendation, the claimant be granted three additional increments over and above those recommended by the Rights Commissioner and that in addition he be paid a once- off lump-sum of €5,000.
The Court so recommends.
Signed on behalf of the Labour Court
Brendan Hayes
22nd November, 2011.______________________
CON.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.