INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
NEC SEMICONDUCTORS (IRELAND) LIMITED
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
1. Appeal against Rights Commissioner's Recommendation ST 450/95.
2. The dispute concerns one worker whom, the Union claimed was unfairly treated in relation to a post (Quality Control Operator) for which she had applied. Four QC Operators were appointed, one to each of 4 different shifts, A,B,C and D. Three of the successful candidates, including the claimant, had worked on the same shift (C). A position on shift (B) was offered to the worker, which she declined. The position on the claimant's own shift (C) was offered to a colleague who worked on the same shift but who had less service than the claimant. The Company denied that there was discrimination of any sort and stated that the post was filled in a fair manner. The dispute was the subject of an investigation by a Rights Commissioner, who found, inter alia, that, based on the general thrust of the arguments at the hearing, including the fact that there was no financial loss involved for the Claimant, there were no reasonable grounds for overturning the management's decision in the matter, which he (the Rights Commssioner) believed was a finely balanced one between two Operatives on the same shift. He recommended that the claim by the Union should fail.
The Recommendation was appealed to the Labour Court by the Union on the 23rd of May, 1996. The Court heard the appeal, in Navan, on the 25th of September, 1996.
3. 1. In the case of a finely balanced result between two candidates, the length of service is by far the most common criterion and it is also recognised as the fairest.
2. The Rights Commissioner's findings were based on the assumption of no financial loss, when, in fact there is a loss at present and there will be an ever-increasing loss in the future (details supplied to the Court).
3. In the past the worker had shown flexibility in relation to the hours she worked. At the interview for the current post, she indicated that she would be prepared to facilitate the Company, at holiday times, etc.
4. 1. Only in the short term would the worker have received an increase. However, later in 1995, arising from a new agreement on pay, the impact of the loss would no longer be present.
2. The results of the two workers concerned from shift (C) were similar but they were not exactly the same.
3. The advertisement for the position stressed the importance of shift changes and it was decided to place all applicants on new shifts.
It is accepted by both sides that, contrary to the Right Commissioner's findings, there is a financial loss involved for the claimant.
It would also appear that the management judgement in relation to the claimant's lack of flexibility, a key measure in selection between the 2 candidates, is not borne out by her record.
Based on the above, the Court does not uphold the Rights Commissioner's Recommendation and upholds the Union appeal.
The Court so decides.
Signed on behalf of the Labour Court
15th of October, 1996______________________
Enquiries concerning this Decision should be addressed to Michael Keegan, Court Secretary.