FULL RECOMMENDATION
SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001 PARTIES : DEPARTMENT OF EDUCATION AND SCIENCE - AND - CAITRIONA CAULFIELD (REPRESENTED BY ASTI) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal against a Rights Commissioner's Decision R-035519-PT-05/TB
BACKGROUND:
2. This is an appeal under Section 17(1) of the Act claiming that the Rights Commissioner erred in deciding that the claim was time-barred and that the claimant was, accordingly, prevented from pursuing the full supervision and substitution monies in respect of the 2001-2002 school year but not paid until Summer 2003.
The worker's complaint is that she was treated less favourably than her full-time equivalents solely because she was a part-time teacher. She lodged her claim on 13th July, 2005, with a Rights Commissioner whose decision was as follows:-
"As the complaint was submitted outside the time limit permitted by the legislation the Rights Commissioner has no jurisdiction to hear this complaint".
The worker appealed her case to the Labour Court on the 30th of December, 2005. A Labour Court hearing took place on the 6th of April, 2006. The following is the Court's determination:-
DETERMINATION:
The only issue for determination in this case concerns the construction of Section 16(3) and Section 16(4) of the Protection of Employees (Part-Time Work) Act 2001. The question arises in the following circumstances.
As part of the settlement of a dispute between the teacher Unions and the Department in 2002, agreement was reached on a payment for substitution and supervision from the academic year 2003 onwards. The Unions sought retrospection on this agreement. It appears, however, that sufficient records were not maintained so as to establish the extent to which individual teachers had undertaken these duties. Because of this the payment of retrospection was considered impractical. As an alternative the payment of a standard ex-gratia amount to all teachers who had participated in providing substitution and supervision was agreed. The parties appear to have accepted that as between full-time and part-time teachers the extent to which they provided this service would be in proportion to their contract hours. Based on this assumption they further agreed that the full amount (€1,000 in the case of ASTI members) would be paid to full-time teachers and pro-rata to those with lesser contracts. The amounts involved were paid in June 2003.
In May, 2004, the Court issued Determination No. PTD047 in a dispute between the Department and a part-time teacher represented by ASTI who claimed that she had performed the same amount of substitution and supervision as a full-time comparator but had received half the ex-gratia payment. In the particular circumstances of that case the Court held with the complainant and awarded her the difference between the amount which she received and the amount paid to her comparator.
The Union then sought the full payment to other part-time teachers, including the Claimant in this case, in reliance on the aforementioned Determination of the Court. The Department rejected this claim in May 2005.
The Union now contend that the time limit should run from the date on which the claim was rejected.
THE STATUTORY PROVISIONS.
Section 16(3) of the Act provides:
3) A Rights Commissioner shall not entertain a complaint under this Section if it is presented to the Commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates or the date of termination of the contract of employment concerned, whichever is the earlier.
Section 16(4) provides:-
(4) Notwithstanding subsection (3), a Rights Commissioner may entertain a complaint under this Section presented to him or her after the expiration of the period referred to in subsection (3) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.
It is clear that the time limit referred to in both subsections runs from the date of the contravention of the Act to which the complaint refers. The complaint relates to a payment which was made to all members of ASTI, including the Claimant, in June 2003. If there was a contravention of the Act in relation to the Claimant it occurred at the time the reduced payment was made. The Complainant was presented to the Rights Commissioner some two years later on 13th July, 2005. It was thus presented outside the time limit prescribed by Section 16(3) of the Act and was also beyond the limit to which the time could be enlarged by a Rights Commissioner or the Court pursuant to Section 16(4).
Accordingly, neither the Rights Commissioner not this Court can entertain the claim.
The Decision of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
25th April, 2006______________________
CON/MB.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.