FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : KILDARE COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT SERVICES BOARD) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Recommendation r-109710-ir-11/DI.
BACKGROUND:
2. This dispute arose from the Council's refusal to appoint the Worker to the post of Water Overseer because he did not live in the area where he would be working. This matter was referred to a Rights Commissioner for investigation and recommendation. On the 8th December, 2011 the Rights Commissioner issued the following Recommendation:-
- “Having fully considered the submissions made by the parties I am satisfied that, given the nature of the Waterworks Overseer's role, it is reasonable of the Respondent to require the job holder of that position to reside in or nearby the job holder's area of responsibility. I am also satisfied that this condition of appointment was provided for in the job specification and that no job offer was made to the Claimant prior to him being informed in writing of this condition.
I therefore find against his claim that he be appointed to the position of Waterworks Overseer".
On the 8th December, 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 18thApril, 2012.
3. 1.Place of residence was not an interview criterion and no extra interview points were allotted to candidates for living in the area of the work.
2.The worker scored very well in the interview and no fault was found with his previous work record.
3.It was alleged to be unfair that the Worker was not allowed to take up the advertised post because his place of residence was not local to the area in which he would be required to work although he believed that he could commute in less than half an hour.
COUNCIL'S ARGUMENTS:
4. 1.The position applied for by the Worker had been advertised by the Council.
2.An obligation to live in the same district as the work was stated in the job specification.
3.The Worker did not comply with the proximity of residence criterion.
DECISION:
This is an appeal by the Union on behalf of a worker of a Rights Commissioner’s Recommendation which found against his claim to be appointed to the position of Waterworks Overseer in the Council’s Western Area. While the Claimant had been successful at interview for the position and the position was offered to him, as he did not fulfil the criterion of residing within the district or within a reasonable distance thereof, he was not appointed to the post.
The Council submitted to the Court that as it’s a public health issue, the residency condition is an essential requirement of the Waterworks Overseer’s job in order to respond to emergencies in a timely fashion.
The Union submitted that there was an obligation on the Council to advise all applicants for the position that this was an essential criterion. The Claimant has held the position of Roads Overseer since 2000 and in that capacity has responded to emergencies on the roads without any difficulties.
Having considered the submissions of both parties the Court notes that it is recognised by the Council that the Claimant was the best candidate for the position of Waterworks Overseer, however as he did not fulfil an essential criterion it could not appoint him. The Court does not dispute the Council’s need to ensure a rapid response time to water emergencies and in these circumstances upholds the Rights Commissioner’s Recommendation. Therefore, the Union’s appeal fails.
Furthermore, the Court recommends that the Council should endeavour to clearly identify the residency condition as an essential requirement for the Waterworks Overseer position in its entire selection process for the future.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
30th April, 2012______________________
COFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Colm O'Flaherty, Court Secretary.