FULL RECOMMENDATION
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : SOUTH INFIRMARY VICTORIA UNIVERSITY HOSPITAL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Foley Employer Member: Mr Marie Worker Member: Mr McCarthy |
1. Filling of position by Seniority
BACKGROUND:
2. This dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Workplace Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on 2 January 2019 in accordance with Section 26(1) of the Industrial Relations Act, 1990.
A Labour Court hearing took place on 9 May 2019.
UNION’S ARGUMENTS:
3. 1. The Union submits that all three complainants have been multitasking for a number of years and that the respondent has no objective gounds or objective justification for not placing them in Band 3.
2. The Union contends that it did engage with the Hospital but that the offer made was not fair or reasonable.
3. The Union says that the three complainants were advised that they could not apply for the post as they did not have the required qualifications. This clearly discriminated against the complainants.
EMPLOYER'S ARGUMENTS:
4. 1. The Hospital has clear recruitment and promotion policies that make it clear that all promotions are based on merit and not on seniority.
2.The Hospital made a fair and reasonable proposal to resolve this issue in September 2018; this was rejected by SIPTU.
3. The Hospital cannot treat three members of staff more favourably than colleagues that they perceive as relief or with less service.
RECOMMENDATION:
The Court has given careful consideration to the written and oral submissions of the parties.
It is clear that a range of staff act in to the Chef 2 position as required and are paid an allowance for so doing. None of these staff are ‘acting up’ in that they are not temporarily appointed to a higher grade so as to fill a vacant position. The arrangements in place in this regard are as set out in a 2003 agreement between the parties which has application to all relevant staff.
The parties are disagreed as to who exactly provides cover when required in the Chef 2 post. Indeed, the Trade Union continued to make unrequested submissions in this regard to the Court following the closure of the Court’s hearing. The employer has made comment on the Trade Union’s supplementary submission to the Court. Notwithstanding the unfortunate reality that the parties have made conflicting assertions to the Court as regards matters of simple fact, the Court concludes that more than the three Claimants are liable to and do act in to the Chef 2 position when required.
Insofar as the 2003 agreement applies to a greater range of staff than are encompassed in the within claim, the Court is unable to find a basis for the proposition that three of those staff, who between them provide less than 50% of all cover, would be selected for an upgrade as claimed by the Trade Union. Such a development would be an amendment to the 2003 agreement.
The employer has set out the basis for a qualification requirement for staff at Chef 2 level. The employer, at the Workplace Relations Commission, made a proposal to address the claim and the Court Recommends that the Trade Union accept this proposal as a reasonable resolution to the within claim.
The Court so recommends.
Signed on behalf of the Labour Court
Kevin Foley
CC______________________
24 June 2019Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ceola Cronin, Court Secretary.