FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : GLANBIA FOODS IRELAND LTD - AND - RICKY MURPHY (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal of Recommendation of a Rights Commissioner r-122107-ir-12/JC
BACKGROUND:
2. The Claimant began working for the Company in August 2006 as a casual worker. In 2011 he was interviewed for a full time position and was placed third on a panel. The Company planned to fill nine full time positions from the panel and when it came to number three, they skipped this and proceeded to number four. The Company said the Claimant was not given a full time position because he had received a disciplinary sanction. This matter was referred to a Rights Commissioner for investigation and recommendation. On the 9th October, 2012 the Rights Commissioner issued the following Recommendation:-
- “In the circumstances, particularly the lack of clarity around the impact of an “active disciplinary file” in this matter I recommend that the company confirm to SIPTU and the claimant that the claimant is now the most senior of the temporary part time employees and is therefore number 1 on the shortlist of temporary workers and that he will be appointed to the next permanent post at his level that becomes available in the Ballytore Plant”.
On the 19th November, 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 12th March 2013.
UNION'S ARGUMENTS:
3. 1. The Claimant was told at the interview that he would not be appointed to a permanent position as he had received a disciplinary sanction.
2. Nowhere in the Union/Company agreement does it mention that a worker would not be considered for appointment if they received a disciplinary sanction.
3.The Claimant has lost his position of seniority.
EMPLOYER’S ARGUMENTS:
4. 1. In 2012 the Company entered into an agreement with the Union to make nine people permanent from the list of part-time and casual employees.
2. It was agreed that seniority would apply provided all things being equal.
3. The Claimant was informed by the Company that he was not being made permanent because he had received a disciplinary sanction.
DECISION:
The Court noted that since the Rights Commissioner issued her recommendation in this case the Claimant has been appointed to a permanent post in accordance with the terms of that recommendation.
The terms of the agreement between the parties that appointments to permanent posts will be on the basis of seniority ‘all things being equal’ is inherently uncertain and is at the heart of the current dispute. In the Court’s view the parties should enter into negotiations with a view to putting in place a clear and precise set of factors that can be taken into account in the making of such appointments in the future.
When criteria for future appointments is agreed the position of the Claimant with regard to seniority should be reviewed with the agreement of all parties affected by any change in the current position.
With that qualification the recommendation of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
CR______________________
27th March, 2013Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.