INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Duffy
Employer Member: Mr McHenry
Worker Member: Ms Ni Mhurchu
1. Appeal by the Union against Rights Commissioner's Recommendation CW472/97.
2. The appeal concerns a worker, with 14 years service, who is employed by the Company in the cleaning section. She has completed two periods of temporary work as a telephonist in the telephone exchange in 1991 and 1994 and is anxious to obtain a position there. The exchange is a section in the Terminal Services Department and when there is a shortfall in the roster (mainly due to sick leave), and intermittent cover is required, Management provides such cover from another section within the Department. When cover is required for an extended period the vacancy is advertised through a Staff Vacancy Notice (SVN). The Union claims that the worker concerned should be allowed to apply for these posts which provide intermittent cover and also be made first choice for temporary relief in the telephone exchange. The Company contends that this is not feasible as short-term cover is provided from within the Department and if cover is required for an extended time the worker can compete for the post which is advertised through SVN.
The dispute was referred to a Rights Commissioner for investigation. On the 1st of October, 1997 the Rights Commissioner issued his recommendation as follows:-
"I recommend that the Company issues an SVN to appoint a relief panel for temporary vacancies in the Telephone Exchange. If a vacancy exceeds 5 weeks then a person will be selected from this panel."
On the 28th of October, 1997 the Union appealed the recommendation to the Labour Court. The Court heard the appeal on the 26th of January, 1998.
3. 1. On enquiring as to how she might maximise her chances of obtaining a post in the telephone exchange, the worker was advised by Management to improve her speech and that a foreign language would be advantageous. She undertook both elocution and language classes at her own expense. From 1985 to 1989 she attended six interviews arising from posts advertised on SVN's but was not successful.
2. The worker was unsuccessful in her efforts to make progress and having sought access to her personal file noted adverse uncomplimentary comments therein indicating a negative attitude to her. Management assured her they would be deleted and shortly afterwards the worker was given her first opportunity to provide cover and satisfactorily did so in 1991-1992 and 1994-1995.
3. Subsequent absences were covered by another worker not on the Company's staff. The vacancy was not advertised. This occurred on another occasion also without the opportunity to apply being afforded to the worker concerned.
4. There has been a practice of filling posts through contacts and personal preference in breach of agreements. This has been detrimental to the claimant's chances of obtaining a post in the telephone exchange. The Company recently expressed its intention to fill vacancies from within the Terminal Services Department thus depriving all cleaners of any chance to progress.
5. There is an onus on the Company to give the worker a commitment that she will be given preferential consideration for the next permanent post on the switch. She is able, capable and committed to providing the level of service required for the job. The worker has also dedicated her own time and money to optimising her qualifications.
4. 1. Intermittent cover needs to be provided in a highly flexible way to meet shortfalls as they arise. Such flexibility is only available from within a Department where local management have responsibility for rostering in all sections and can therefore decide where to utilise their manpower.
2. If the worker was moved from cleaning section to the telephone exchange she would have to be covered on overtime to maintain crew strengths. This would have the effect of incurring overtime costs in cleaning to meet a shortfall in Terminal Services which is a separate department. Overtime cover does not arise when the replacement is made from within the department.
3. Providing cover from within the same department is a common practice throughout the Company. Staff can be requested to move to an alternative position to meet a short term requirement which would not always warrant recourse to the Staff Vacancy Notice system. Should a need arise anytime in the future to provide fixed as opposed to intermittent cover, for a reasonable period of time, the policy of advertising the vacancy on the Company's SVN system would still apply and staff would be free to compete for this in the normal way.
4. The Company accepted the recommendation of the Rights Commissioner as Management felt it did not interfere with the existing arrangement for providing intermittent cover without delay while maintaining the Company's commitment to the staff vacancy system for vacancies of longer duration. Management considered that, as the worker's position was maintained to compete for vacancies in the exchange by applying for inclusion on the panel, she was therefore not being disadvantaged in the any way. The Company was not, however, in a position to guarantee that she would fill a future vacancy because of the broader agreement on the filling of staff vacancies through competition.
5. The worker can compete to joint the panel and if successful it will place her in a position to be approached to take up vacancies as they arise. Her experience and satisfactory performance in the role in the past makes the worker a favourable candidate for inclusion in the panel and for opportunities that may arise in the future. Vacancies in the exchange can only be filled through the Company's Staff Vacancy Notice system or the panel arrangement proposed by the Rights Commissioner to meet the Company's obligations under the former system.
Having considered the written and oral submissions made by the parties the Court concurs with the findings and recommendation of the Rights Commissioner.
This recommendation provides for the establishment of a relief panel from which temporary vacancies in the telephone exchange, exceeding 5 weeks duration will be filled. While the Rights Commissioner expressly recommended that the SVN system should be used in compiling the relief panel, the recommendation is silent on the question of how selection is to be made for or from the panel. The Court assumes that this is a matter for further discussion and agreement between the parties. In those discussions full regard should be had to the need for fairness and transparency at all stages of the selection process.
The Court so decides.
Signed on behalf of the Labour Court
2nd February, 1998______________________
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.