FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SPS INTERNATIONAL LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Foley Employer Member: Mr Marie Worker Member: Mr Shanahan |
1. An appeal against a Rights Commissioner's Recommendation no: r-136871-Ir-13/MH.
BACKGROUND:
2. This case concerns a complaint by the Union on behalf of the Claimant that two promotional positions were not advertised and were offered directly to two members of staff.
- The Union said that as a result of the Employers actions the Claimant was denied a legitimate opportunity of a promotion from Grade 2 to Grade 1 from that date.
The Employer said the positions were advertised verbally which is an accepted practice.
- This matter was referred to a Rights Commissioner for investigation and Recommendation. On the 2nd November 2015 the Rights Commissioner issued the following Recommendation:-
- The net point at issue in this case is the legitimacy of the two appointments to the back-up role roles prior to the agreement of November 2011 (TW Agreement). It is a matter of fact that in the two specific cases both were selected and appointed by the manager for the area at that time. The first question to be addressed is whether or not Article 29.0 of the Agreement has been breached. It would seem to me the relevant provisions are contained at 29.2 and 29.3 and that on balance there was no breach of the Article 29.0 in the specific cases.
The second question relates to the operation of custom and practice. It has been clearly shown that there was no consistency here but that the erstwhile manager has probably come as close as possible to outlining the general approach taken in the past. I am inclined to accept that the matter was verbally advertised within the section and it may be that the claimant was inadvertently overlooked. In my opinion the appointment of the two individuals to the back-up positions was legitimate in all the circumstances.
Therefore the submission of the respondent must be preferred and consequently I am not in a position to make a recommendation favourable to the claimant as petitioned. However I would exhort the institutions to review their arrangements so as to ensure full transparency in these matters for future reference. I so recommend.
- The net point at issue in this case is the legitimacy of the two appointments to the back-up role roles prior to the agreement of November 2011 (TW Agreement). It is a matter of fact that in the two specific cases both were selected and appointed by the manager for the area at that time. The first question to be addressed is whether or not Article 29.0 of the Agreement has been breached. It would seem to me the relevant provisions are contained at 29.2 and 29.3 and that on balance there was no breach of the Article 29.0 in the specific cases.
The Union on behalf of the Claimant appealed the Rights Commissioner’s Recommendation to the Labour Court on the 8th December 2015 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 14th January 2016.
UNION’S ARGUMENTS:
3. 1. The Company is in breach of the Company Union Agreement which provides at Article 29.4 that “it is Company policy to advertise job openings within the Company….Job vacancy notices will be placed on the bulletin board for a minimum of three regularly scheduled working days.”
2. These roles were not advertised on the bulletin board and the Claimant was not informed verbally.
3. As a result of the Employers actions the Claimant was denied a legitimate opportunity of promotion.
EMPLOYER’S ARGUMENTS:
4. 1. The Employer said the Manager of the unit approached all of the Workers in that section but none were willing to apply for the post. He had to convince two Workers to take up these posts.
2. There is no clear custom and practice in advertising posts.
3. In August 2015, the Company advertised for a Grade 1 position. The Claimant did not apply for this role.
DECISION:
The Court has carefully considered the written and oral submissions of the parties. The Claimant contends that on two occasions he was unaware of the process of appointing a Grade 2 Operator to Grade 1 positions. The first such event occurred in 2009 and the second occurred in 2011.
Position of the Parties
The Claimant
The Union states to the Court that the positions were not advertised and that these failures to advertise the positions were in breach of Section 29 of a Company / Union Agreement concluded in 1994. The Union contends that the Claimant was consequently denied opportunities for promotion.
The Respondent
The Respondent contends to the Court that the methodology employed by the company to make appointments and promotions varied in the period after conclusion of the 1994 agreement and up to the conclusion of a further agreement in 2011. The Respondent states however that advertising of positions in the company when it occurred was verbal on occasion and written on other occasions. The Respondent states that both positions referred to in the within case were verbally advertised by a manager in the area and that no breach of the 1994 agreement has occurred.
Discussion
The Court is faced with conflicting evidence in this matter with contradictory assertions being made by the parties as to whether the positions were advertised at the point of their becoming available to be filled. The Court is also conscious that in any event were the positons advertised at the time there can be no certainty that the Claimant would have applied for either or both positions and similarly there can be no certainty that he would have succeeded in securing an appointment.
The Court notes that the parties have, in 2011, concluded a fresh agreement dealing with matters related to promotion.
Recommendation
The Court takes account of the findings of the plant manager dated 22ndMarch 2013 and concludes that, on the balance of probability, the positions in question were not advertised in a manner which was clear and transparent to all potential candidates. The Court is not able to assess the likelihood of the Claimant being appointed to either positon whatever the methodology employed might have been but does accept the frustration of the Claimant as outlined to the Court. In all of the circumstances of this particular matter the Court Recommends that the Respondent should make a payment of €800 to the claimant in settlement of the grievance raised by him in 2013.
Signed on behalf of the Labour Court
Kevin Foley
CR______________________
16th March, 2016.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.