FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : GERFLOR LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - UNITE DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Filling of promotional post /Claimed breach of custom and practice
BACKGROUND:
2. This dispute concerns the filling of promotional posts and the claimed breach of custom and practice. The Union is seeking that vacancies be filled from existing employees with subsequent vacancies filled by workers who were previously made redundant. Management's position is that it now needs to recruit externally on the basis that there were no suitable internal applicants for the post in question. This dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Labour Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 21st May, 2014, in accordance with Section 26(1) of the Industrial Relations Act, 1990.
A Labour Court hearing took place on the 18th June, 2014.
UNION’S ARGUMENTS:
3. 1. The procedure for the filling of vacancies has changed since the last promotional opportunity in 2011. The workers were not aware of these changes and were unaware that a score of 90 had to be achieved on an interview questionnaire before one could be considered for promotion.
2. The Union is seeking that promotions be filled from within the existing workforce which would allow a vacant position to be filled by a former employee who had previously been made redundant.
EMPLOYER'S ARGUMENTS:
4. 1. Vacancies will be filled by existing employees where possible, however, a collective agreement concluded between the parties provides that the Employer has the right to recruit at its sole discretion. Management are recruiting externally on this occasion on the basis that there were no suitable applications for the vacancy from within the current workforce. This is in compliance with the provision of the collective agreement.
2. The Employer says that it is of vital importance that the vacancy is filled immediately as the current dispute greatly affects the possibility of future investment and the long term viability of the Company.
RECOMMENDATION:
The issue before the Court is a claim by the Union concerning an alleged breach by the Company of custom and practice in relation to the filling of promotional vacancies for a Supervisory position in February/March 2014. The Company disputed the Union’s allegation and held that there was no change to its normal recruitment process.
The Court notes that the 2011 House Agreement agreed with the Union under Clause 1.5 “Union Membership & Collective Bargaining” states:-
- “The right of the employer to recruit at its sole discretion is recognised.”
It is accepted that the established custom and practice is that such vacancies are, in the first instance, advertised internally. In the present case, the Company sought to fill the disputed post internally. Two applicants applied for the position, both were interviewed, however, as their interview scores did not meet the required standard, they were deemed unsuitable for the position. Following this process the Company proceeded to seek external applications.
The Union maintained that once there were internal applicants one of them must be given the promotional post as had always happened in the past. It was brought to Management’s attention that in the event that one of the internal applicants was not appointed to the position it would ballot for industrial action over the issue. At this point the Company reopened the competition to internal candidates as the Company wished to allow other internal applicants to apply. Unfortunately, no further applications were forthcoming.
Having considered all aspects of this dispute the Court is satisfied that the Company’s procedures for the filling of promotional position has been consistently applied and could not be classified as a breach of custom and practice. The Court accepts that the Company has the right to seek external applications when no suitable internal applicants are forthcoming and that such discretion is inherent in the 2011 Agreement.
Therefore, the Court recommends that the promotional process for the appointment of a Supervisor should proceed as planned by the Company with external applicants being considered for the position. Accordingly, the Court does not uphold the Union’s claim.
The Court so Recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
CC______________________
20th June, 2014Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ceola Cronin, Court Secretary.