FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION - AND - A WORKER (REPRESENTED BY SIPTU STAFF REPRESENTATIVE COUNCIL) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Recommendation of a Rights Commissioner r-107262-ir-11.
BACKGROUND:
2. The Claimant has twenty years experience as a full time Administrative Assistant and eleven years in a job sharing capacity with the Union. In 2008 the Claimant enquired about resuming full time work and she was advised that there was no vacancies as the organisation was undergoing restructuring. Subsequently she became aware of a full time post being filled without been advertised as per agreed procedures via e-mail and circulars. The Union contends that it has acted in accordance with the Union's policy on work sharing and cannot increase hours of staff at a time when it is actively trying to reduce numbers.
The issue involves a claim by a Worker. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 5th June 2012, the Rights Commissioner issued her Recommendation as follows:-
" Having reviewed all of the direct and documentary evidence presented at the hearing and subsequent to same, I find that the employer should have advertised the disputed Administrative Position. In order to avoid conflict between workers who may have competing rights, it is essential that procedures are observed and are seen to be observed in a just, equitable and transparent manner. I endorse in full the 3 recommendations of the Joint Industrial Council with respect to advertising of positions, temporary work and agreement on a protocol for applications by job sharers for additional/full time work.
I have reviewed in detail the submissions of both parties with respect to disadvantage suffered by the claimant, and have noted, in particular, the chronology of correspondence between the claimant and the respondent with respect to her application to resume full time work. I have had regard to the fact that the claimant's job description provides for her reporting relationship being to the Divisional Secretary. Additionally, I have taken account of the provisions of the respondent's current job sharing scheme which does not provide for expressions of interest or any informal communication with respect to resuming full time work. In the circumstances I accept the respondent's contention that no vacancies were filled subsequent to the claimant's application to resume full time work. Having regard to the foregoing and in light of the fact that it is implicit under the provisions of the current Job Sharing Scheme that job sharers have no automatic entitlement to resume full time work as the provisions currently state... job sharing employees will not be able to return to full-time employment other than applying for andsuccessfullyobtaining a full time position, duly advertised and filled in the normal way, as and when such vacancies arise... I cannot find a basis for the claim for compensation for losses incurred and, accordingly, I recommend against this element of the complaint".
On the 16th July, 2012 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 9th November, 2012.
WORKER'S ARGUMENTS:
3. 1. The Employer had a duty to operate best practice and failed to do so, both in their non advertisement and subsequent handling of the case.
2. By way of remedy the Claimant is seeking to be restored to a full time position and be paid compensation for loss of earnings arising from remaining in a job sharing capacity.
EMPLOYER'S ARGUMENTS:
4. 1. In February 2008 a full time post was advertised via e-mail to all staff, only one expression of interest was received and the position was duly filled. In June 2008 another full time post became available and it was assumed that no other staff member wished to transfer to a full time post based on the experience of the response to the February e-mail. As there was a suitable applicant available, she was offered the post.
2. The Union as the Employer is required to balance all rights and requests in the most equitable way possible. Had a vacancy arisen after the Claimant had requested to return to full time work, there was no guarantee that she would have been the only job sharer applying for this post, nor was there any guarantee that she would have been successful in obtaining the position.
DECISION:
- The Court agrees with the conclusion reached by the Rights Commissioner to the effect that the position which became vacant in June 2008 should have been advertised. However it was not advertised for the reasons referred to by the employer in the course of the hearing.
The Court notes that the Claimant first applied for full-time work in August 2008, some two months after the vacancy in issue arose. In these circumstances the Court is not satisfied that the Claimant has established an entitlement to compensation for not being afforded an opportunity to apply for a full-time post before she indicated her desire to cease job-sharing.
It is also noted that under the Employer’s policy, which the Claimant accepted, job-sharers do not have an automatic entitlement to full-time work.
In all the circumstances the Court believes that the Recommendation of the Rights Commissioner is reasonable and should be upheld.
In is the Decision of the Court that the appeal be disallowed and that the Recommendation of the Rights Commissioner be affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
7th December, 2012______________________
JFChairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.