FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001 PARTIES : CATHOLIC UNIVERSITY SCHOOL (RESPONDENT) (REPRESENTED BY MARGUERITE BOLGER B.L. INSTRUCTED BY MASON HAYES & CURRAN SOLICITORS) - AND - AOIFE KEOGH (CLAIMANT) (REPRESENTED BY CLIONA KIMBER B.L. INSTRUCTED BY BCM HANBY WALLACE SOLICITORS) DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of a Rights Commissioner's Decision r-045008-pt-06/JC.
BACKGROUND:
2. This is an appeal from a Decision of a Rights Commissioner under the Protection of Employees ( Part-Time Work Act) Act 2001(the Part-Time Act). Ms Keogh (hereinafter referred to as the Claimant) was originally employed as a part-time teacher on a succession of fixed term contracts. She brought claims under the Protection of Employees (the Fixed –Term Work) Act 2003 (Fixed Term Act) (a) alleging unfavourable treatment in that her terms and conditions of employment were less favourable than those of a teacher on a contract of indefinite duration in the Catholic University School (hereinafter referred to as the the Respondent); and (b) claiming that the School should have furnished her with a contract of indefinite duration pursuant to Section 9 of the Fixed-Term Act.
She also bought claims under the Part-Time Act alleging the same unfavourable treatment in relation to her terms and conditions.
The Rights Commissioner having found that the relief from unfavourable treatment claimed under both Acts arose from the same set of circumstances then decided under Section 18 (2) of the Fixed-Term Act not to grant relief under that Act but to grant relief under the Part-Time Act. At the time of the Rights Commissioner's Decision the Claimant had resigned from her employment with the Respondent. The Rights Commissioner decided that compensation was the appropriate remedy in that case and awarded the Claimant compensation of €2500 for the breach of the Part-Time Act.
The Rights Commissioner found that the balance of the Claimant's claim under the Fixed-Term Act was not well-founded. That Decision was not appealed.
The Respondent appealed against the Rights Commissioner's Decisions under the Part -Time Act on 5th June 2008. A Labour Court hearing took place on 5th November 2008.
The appeal was taken in conjunction with the Respondent's appeal in relation to the case of Colm Dooley Reference Number PTD092. Both cases were heard together and the arguments advanced by the Respondent and the Claimant in respect of the claims made by the Claimant in this case and Mr Dooley under the Part-Time Work act were exactly similar. The Claimant did advance a fresh claim that an alleged incident had occurred since she submitted her claim to the Rights Commissioner which she claimed constituted penalisation within the meaning of Section 15 of the Part-Time Act. Since no such claim was before the Rights Commissioner it cannot be heard by this Court.
Since the submission and arguments in relation to the points at issue were the same in both cases the Courts findings therefore must be the same.
Court's Findings
As the Court has found in the Dooley case, it is of the view that the Claimant's chosen Comparator was the appropriate person on which to base the claims set out above. The Court finds that the grounds submitted as objective justification for the less favourable treatment of the Claimant do not pass the accepted tests.
In normal circumstances the Claimant would be entitled to the terms and conditions pro-rata to those of her full-time Comparator from six months prior to the date on which her complaint was first lodged with the Rights Commissioners Service. However, since the Claimant had left the employment of the Respondent prior to the making of the complaint, the Court is of the view that the appropriate redress is an award of compensation.
The Court is of the view that the redress ordered in this case by the Rights Commissioner is sufficiently effective, proportionate and dissuasive.
DETERMINATION:
The Court dismisses the appeal and affirms the Decision of the Rights Commissioner.
The Court so determines.
Signed on behalf of the Labour Court
Raymond McGee
22nd April, 2009______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.