Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under section 13    of the Industrial Relations Act, 1969

CA-00009359-001

27/01/2017

This case concerns a claim by SIPTU, on behalf of the Complainant,   that a vacant post, (that of General Maintenance Backup), should have been   awarded to the Complainant in line with Company/Union agreements.

Until 2012 the Maintenance Department had 2 full-time General   Maintenance Operator positions. This was reduced to one following a   redundancy. Management then sought to downgrade the replacement post to that   of a Cleaning/Packaging role on a lower pay rate. A dispute between the   parties in this regard was the subject of a Labour Court Recommendation in   June 2013, following which the post was filled in line with that   Recommendation.

In April 2016, the Cleaning/Packaging post became vacant again. In   line with the agreements management advertise the role internally, in the   first instance, at the €12 per hour rate. However, the lower pay rate   attracted no applicants. The vacancy was then advertised externally and   filled.

On 13 April 2016 the role of General Maintenance Backup was   advertised internally, at a rate of €17 per hour. The Complainant applied for   the position as did the recently appointed Cleaning/Packaging employee. The   latter employee was successful in his application and was appointed to the   role.

The Complainant was aggrieved and lodged an appeal against the   decision to appoint the Cleaning/Packaging employee. The Complainant's appeal   was unsuccessful. Consequently, in January 27, the matter was referred to the   WRC. In the interim, the parties agreed that, pending the outcome of the WRC   process, only the cleaning/packaging elements of the role would be carried   out.

On 12 April 2017, in advance of the Adjudication hearing, the   parties met again to see if agreement was possible. A proposal was made by   management, but this was rejected by the Complainant.

It was submitted on the Complainant's behalf that it has been the   practice that seniority within the relevant department is the normal criteria   used for selection. The Complainant is relying, in this regard, on a 2011   brokered agreement and the Company/union Agreements.

The Complainant believes that the position should have been awarded   to him based on his seniority/service over the successful candidate, who was,   at the time, on probation and was, therefore, not a permanent employee.

Consequently, the Complainant requested a recommendation which would   allow him to carry out all the backup maintenance work, as opposed to the   more limited proposal made by the company on 20 April 2017.

The Respondent submitted that, in accordance with Section 29.2 of   the Procedural Agreement in place between the Respondent company and the   Trade Union: "promotions and   transfers would be at the sole discretion of the company and will be based on   ability and suitability for the position. Seniority, previous related skills   and experience, related education and current work assignments will be taken   into account. The company will endeavour to fill promotions from within a   department in the first instance."

The Respondent also stated that custom and practice dictates that   any roles that arise within a given department are, in the first instance,   offered to any applicant from within the Department and that seniority is not   a factor.

The Respondent also confirmed that the employee appointed to the   General Maintenance Backup role in question was a full-time and permanent   employee, working in the department where the vacancy had arisen.

It was further stated by the Respondent that the position in   question was advertised previously in August 2014 and the Complainant did not   apply for the position at that time.

During the internal grievance process, the Respondent suggested   withdrawing the backup position and replacing it with a second General   Maintenance role, which would have given the Complainant the opportunity to   apply for a transfer to the Maintenance Department. However, the Complainant   was not interested in this option.

The Respondent also referred to a proposal which was offered to the   Complainant in the days leading up to the WRC hearing. This proposal was also   rejected.

In conclusion, the Respondent requested that all of the foregoing   arguments be taken into consideration by the Adjudicator when making this   recommendation.

Having carefully considered all of the representations/arguments   made by and on behalf of the respective Complainant and Respondent, I issued   the following recommendation:

• The   Respondent will revert to the pre-2013 situation of 2 General Maintenance   Operator positions.

• These   positions will be filled by the existing General Maintenance Operator and the   newly appointed Backup General Maintenance Operator.

• The   Complainant will then be appointed to the position of General Maintenance   Backup.

• The   Complainant in this position as General Maintenance Backup will qualify for   overtime relating to both cleaning and maintenance duties, in line with the   normal operational requirements for such overtime.

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