LCR23026

PARTIES:

DIVISION:

SUBJECT:

Denied grade progression, the prescribed ESB Grade Progression process was not properly applied.

BACKGROUND:

The Worker referred this case to the Labour Court on 30 November 2023 in accordance with Section 20 (1) of the Industrial Relations Act, 1969, and agreed to be bound by the Court’s Recommendation.

A Labour Court hearing took place on 9 August 2024.

RECOMMENDATION:

The Court has given very careful consideration to the written and oral submissions of the parties. The function of the Court in this matter is to formulate an opinion, in the form of a Recommendation, on the merits of the trade dispute, and the terms on which it should be settled. The Court notes that the worker has, as required by the statute, confirmed in advance that he will accept the Recommendation of the Court.

The trade dispute, in essence, arises from the worker’s unsuccessful application for an upgrade within the context of a ‘portfolio review’ carried out in 2023.

It is not disputed that the existence of a portfolio system within the company is a product of a collective agreement between the employer and the Group of Unions present in the employment. It is also accepted that the nature and operation of regular ‘portfolio reviews’ are the product of a series of collective agreements between the same parties.

The trade union representing the worker in this matter is not a member union of the Group of Unions in the employment and is not party to any collective agreement with the employer dealing with the portfolio system or ‘portfolio reviews’.

The worker asserts that the process agreed between the employer and the Group of Unions for the conduct and operation of the 2023 ‘portfolio review’ was not operated correctly in Galway. That failure to operate the process correctly resulted in unfairness according to the trade union. The fundamental failure, according to the trade union, was a failure of a supervisor to carry out a one-to-one interview with the worker or any of the five candidates in Galway before completing his initial assessment of the worker for the purposes of the ‘portfolio review’.

The employer accepts that the conduct of the initial assessment in Galway was not in keeping with the agreed process for the conduct of the ‘portfolio review’, in that a one-to-one interview did not take place with any of the five candidates in the Galway area. One candidate was successful in achieving an upgrade and four candidates from Galway were not. The employer submits that no unfairness resulted from the conduct of the initial assessment process in Galway.

The agreed process for challenge of the outcome of a ‘portfolio review’ in the case of any individual worker is through the grievance procedure in place in the employment. That process was utilised in the case of the worker, albeit he does not have access to the ESB Industrial Council operated by the Group of Unions and the employer.

The worker submits that an independent review of the process carried out in Galway should be undertaken by a suitable external expert. Both parties agree that there is no provision in any collective agreement establishing the portfolio system or in any agreement governing the process of ‘portfolio review’ for an independent review of any decisions made within that process or made in the exercise of any grievance procedure employed to challenge the outcome of a ‘portfolio review’.

It appears to be the case that the worker is alone as an NT in having exercised his right to raise a grievance in relation to the 2023 ‘portfolio review’. There were four unsuccessful candidates in that review in Galway and approximately 500 unsuccessful candidates overall in the employment.

In the view of the Court there is no basis for the proposition that the Court would enter upon the agreed procedures in place in the employment for the operation and conduct of ‘portfolio reviews’. In that regard the Court notes that none of the parties to the collective agreements governing the ‘portfolio review’ process have raised any claim or concern as regards the operation of the 2023 portfolio review. The Court also notes that no representative of the Group of Unions was present before the Court at its hearing.

The practice of good industrial relations, particularly in the voluntarist framework, necessarily requires all parties to exercise realism, pragmatism and common sense. There can be no reality to the proposition that the Court would impinge on the collective agreements of the company and the Group of Unions so as to recommend that an additional element of review of the operation of a ‘portfolio review’ should now be introduced. Specifically, that the process should be open to independent review in any or all cases where a worker is not satisfied with the outcome of the review or indeed the outcome of the internal grievance and appeal processes in place in the employment.

In all of the circumstances, the Court recommends that the parties accept that the 2023 portfolio process is complete and cannot be re-opened.

The Court so recommends.

	Signed on behalf of the Labour Court
	Kevin Foley
TH	______________________
12 August 2024	Chairman

NOTE

Enquiries concerning this Recommendation should be addressed to Therese Hickey, Court Secretary.