INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioner's Recommendation IR20489/04/MMG.
2. The Union is claiming that the worker was unfairly treated which led to a loss of opportunity for short-listing for promotion. Its case is as follows:
The worker joined the College in October, 1986, as a temporary storeman and in time was promoted to the position of Executive Officer in the Buildings Office. In 2003, the position of Buildings Co-ordinator arose and the position was advertised in September, 2003, (for a second time following an error in the previous advertisement). The worker applied for the post and was told he was one of 29 applicants from which a short-list of 3 was drawn up. Following an interview the successful applicant declined the post. A second interview took place but the worker was not included in the list of interviewees. Four of the applicants on the short-list were from the Buildings Office and one of these was successful. The worker believed that he was unfairly treated and spoke to the Staff Secretary about his concerns. He had a number of meetings with the Staff Secretary and was informed that the short-list for interview had been drawn up by only one member of the interview panel, the Buildings Officer.
The College's case is that it conducted the interviews in as fair a manner as possible and that the most qualified candidate was successful.
The worker referred his complaint to a Rights Commissioner and his conclusions and recommendation were as follows:-
"Having carefully considered the matter and the evidence as presented at the hearing it is not possible for me to say whether or not the worker if he had reached the interview panel would have successfully gained the appointment or not. It is also not possible for me to agree or confirm that further opportunities for promotional outlets will not arise within the college.
I would however suggest that the process of a single selector drawing up an interview short-list while not in its own right a suggestion of any impropriatory behaviour on behalf of that selector, but does leave one open for possible accusation of lack of sureness and/or bias. I would recommend that this practice would cease in the future. I would also suggest that the worker as with all applicants be afforded every opportunity to apply and be considered for promotional opportunities and afforded the appropriate feedback throughout the process.
In the meantime I would like to suggest that the college would consider a review of his position without prejudice as to where it currently stands within the college grade system. This would be in response to a request by the worker to have his position promoted to the level of administrative officer grade and this is a decision I cannot make.
I recommend that by way of compensation a one off payment in the sum of €1,000 be made to the worker".
(The worker was named in the above recommendation)
The College appealed the recommendation to the Labour Court on the 21st of March, 2005, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 13th of May, 2005. The College is only appealing the monetary aspect of the recommendation.
3. 1. The worker was highly qualified in his job. This included graduating with a Diploma in Purchasing and Materials Management in 1993.
2. The worker believes he had as much experience as any of the candidates from the Buildings Office who were short-listed for the second interview. He is at a loss as to why he was not given a similar opportunity.
3. The worker does not understand the Colleges' allegation that he did not meet with the "further particulars" requirement for the job as none were mentioned in the advertisement.
4. The College's decision to have only one member of the interview panel draw up the short-list is in clear breach of its procedures.
4. 1.The advertisement for the post included the following:-
"Applicants are invited from suitably qualified persons with a strong proven record in management and organisational skills in the building industry".The College does not believe that the worker filled that criteria, although it does not doubt his qualities / abilities. Those called for interview had the more relevant qualifications and the most suitable candidate was chosen.
2. Although the College acknowledges that there was a technical breach in its internal protocol, it does not believe that this affected the final outcome.
Having carefully considered the submissions of the parties, the Court has come to the view that the conclusions reached by the Rights Commissioner are correct and that his recommendations are reasonable.
In these circumstances, the Court does not see any basis upon which it should interfere with the recommendation under appeal.
Accordingly, the appeal is disallowed and the recommendation of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
26th May, 2005______________________
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.