INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Flood
Employer Member: Mr McHenry
Worker Member: Mr Rorke
1. Appeal against Rights Commissioner's Recommendation RC28/97.
2. The appeal concerns a dispute surrounding the filling of positions following a major re-organisation in the Company. In total, 17 internal applications were made for 5 positions, as follows:-
- 2 positions on 3-shift - moulding materials handler
1 position on days - granulating
1 position on 3-shift - moulding
1 utility position on days.
The unsuccessful applications of three workers are the subject of this dispute:
Worker 1: The Union claims he should have been appointed to the utility position and that the Company had ignored seniority, all other things being equal.
Worker 2: The Union's position is that the two appointees to materials handlers positions were junior to the claimant, who could have been trained for the post.
Worker 3: This worker's application, also for materials handler, was unsuccessful even though he had done the job on a temporary basis. The Union claims that a supervisor had said that one post was filled on service and the second on company discretion.
The Company rebutted the claim that any of the selections had been unfair and stated that, in each case, the most suitable candidate was chosen.
Following investigation of the dispute, the Rights Commissioner found as follows:-
"Job selection often gives rise to disputes. Unfortunately the persons selected were not party to this dispute, although they have every right to be aggrieved if I overturned the Company decisions. Ultimately I believe that 'other things are never equal'. In other words I do not consider that seniority has any role in a fair selection procedure, unless it is agreed that seniority is the determinant factor.
A number of issues were raised during the hearing which deserve to be addressed. Every selection process should be fair and seen to be fair. All job advertisements should state the criteria on which candidates are to be considered. At interview candidates should be asked the same questions (as far as is practicable) and their scores noted by interviewers against the different criteria. Any weighting adopted by the interviewers (e.g. double marks for a particular skill) should be advised. Whether a person can be trained for a particular job/skill or whether they have filled in for temporary periods are not necessarily factors for filling permanent positions.
I consider that the Company should ensure that any interview panel is given training in appropriate skills before it goes to work."
He recommended that the Union accepts that the present appointments stand and that the Company amends its selection process, as appropriate, in the future.
The Union appealed the recommendation to the Labour Court on the 16th of June, 1997, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 22nd of August, 1997.
3. 1. Worker 1: This applicant was never given the opportunity to show that he could perform the duties associated with the utility position. By giving the job to a junior who had filled in on the job, the Company did not apply seniority.
Worker 2: This applicant was a materials handler in another department when applying for the post of materials handler in injection moulding. He is fully trained as a fork-lift operator and is senior to both successful applicants. He was not treated fairly or properly considered for the position. The view on the factory floor was that the filling of the positions had been decided upon before the interviews took place.
Worker 3: This worker applied for two positions, i.e., materials handler and granulator operative. He was advised at interview that there would be no overtime in the latter position and, accordingly, he withdrew his application. The information given to him regarding overtime was inaccurate in that overtime is still ongoing some 10 months later. He was, also, unfairly treated in the way the interview was carried out (details supplied to the Court).
2. The Rights Commissioner's recommendation is unacceptable since it does not go as far as would reasonably be expected. While not expecting the successful candidates to be removed from their positions, some form of compensation should be given to the three claimants, who were not given fair and reasonable interviews. The methods used for all future interviews should be changed to reflect the findings of the Rights Commissioner.
3. The Clause on seniority regarding appointments in the Company/Union Agreement (details supplied) was ignored both in spirit and in practice by the Company.
4. 1. The three individuals filling the posts which are the subject of this dispute have fulfilled all of their duties since being appointed, having been successful at interviews that were held in good faith.
2. The discretion for selection and appointment is a management prerogative and must be retained as such for any company operating in the modern competitive environment.
3. The Comprehensive Agreement with the Union acknowledges management's discretion when it comes to selection and recruitment.
4. Seniority is not an appropriate deciding factor for recruitment, while it deserves consideration, it is entirely appropriate to assess other issues like initiative, interest and self-starting, as was the case in this instance.
5. The Rights Commissioner made a comprehensive recommendation in this case. A number of points were made about the Company's interview procedures for the future and how they could be improved. These suggestions have been embraced by the Company who have already put mechanisms in place to make improvements as suggested.
The Court, having considered all the information before it, finds that the Company/Union Agreement gives the Company the prerogative to select and appoint.
However, the Court is concerned that nothing has been done to implement the suggestions made by the Rights Commissioner to address the inadequacies in the interview procedures in the Company.
The Court rejects the appeal and upholds the Rights Commissioner's Recommendation.
Signed on behalf of the Labour Court
5th of September, 1997______________________
Enquiries concerning this Decision should be addressed to Michael Keegan, Court Secretary.