INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
WICKLOW COUNTY COUNCIL
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Duffy
Employer Member: Mr Grier
Worker Member: Mr O'Neill
1. Filling of vacancy.
2. The dispute before the Court concerns a claim by the Union on behalf of it's member employed as a general operative by Wicklow County Council. The Union contends that the dispute arises from a position of Water Caretaker becoming vacant in Greystones, Co Wicklow, and the failure of the County Council to advertise the position. This, the Union claims, denied their member the opportunity of applying for the position and thereby lost access to a promotional opportunity with the corresponding higher level of earnings.
- The dispute could not be resolved at local level and was the subject of a conciliation conference under the auspices of the Labour Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 22nd October, 2004, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 10th February, 2005, the earliest date suitable to the parties.
3. 1. The worker has worked for the Council in the capacity of a general operative, assisting a plumber. He is therefore had an amount of experience of plumbing work. Given his experience, he would have an advantage over general operatives had the job been advertised and filled from the general operative grades.
2. The Council were negligent by not advertising the position in the first instance. It is the view of the Union that as a Public Body, the Council are obliged to advertise all posts, initially internally and where appropriate externally if no suitable applicant is available from within.The Unions contends that a substantial wrong was perpetrated against it's member.
3. The custom and practice has been that the job of Caretaker would be filled from the general operative group of grades. The position of Caretaker is seen as a promotional opportunity, and carries a higher basic rate than the general operative. In comparison with the craft rate, the Caretaker is paid at a lower rate.
4. Given the custom and practice, the Council again were negligent in that they did not provide training for the inevitable vacancy of Caretaker, despite their obligations under National Agreements. The Council argued that because of a change in technology the appointment of a craftsperson was appropriate. If this was to go unchallenged despite the National Agreements, it would have serious consequences for the grade of general operative going forward.
4. 1. The worker has no right to expect that he is entitled to be appointed to the position of Water Caretaker.
2.The Council acknowledges that the recruitment procedures that existed at the time in December 2001, were not as robust as they should have been and since then arrangements have been made to ensure that a similar incident will not occur in the future.
3. In an effort to seek a resolution of this matter the Council has fully participated in the Conciliation Conference at the Labour Relations Commission and made an initial offer of €500 and subsequently increasing it to €2,000 compensation on a "without prejudice basis".
4. The improved offer of €2,000 made at the conciliation conference in full and final settlement was more than generous in the circumstances.
The Court is of the view that the Council were seriously remiss in the manner in which they dealt with the filling of the post in question. The Court accepts that there is no certainty that, had the correct procedures been observed, the claimant would have been appointed to the disputed post. Nonetheless he was entitled to have his application properly considered.
In the circumstances the Court recommends that the claimant be paid compensation in the amount of €3,500 in settlement of his claim.
Signed on behalf of the Labour Court
23rd February 2005______________________
Enquiries concerning this Recommendation should be addressed to Joanne O'Connor, Court Secretary.