FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ST SYLVESTER'S INFANT SCHOOL (REPRESENTED BY MASON, HAYES & CURRAN SOLICITORS) - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Recommendation r-080659-ir-09/GC.
BACKGROUND:
2. This dispute concerns a claim by the Worker - a Special Needs Assistant (SNA) - that a reduction in her working hours was in breach of Department of Education & Science seniority arrangements for SNAs. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 15th January, 2010 the Rights Commissioner issued the following Recommendation:-
- “Having given careful consideration to the submissions and arguments in this case, I do not recommend in favour of the claimant's case”.
- “Having given careful consideration to the submissions and arguments in this case, I do not recommend in favour of the claimant's case”.
3. 1.The Department of Education & Science's Circular 59/2006clearly states that seniority is an important consideration when deciding which SNAs should be offered reduced hours or made redundant when a school's allocation is reduced.
2. The School made a unilateral decision to ignore this regulation.
3.The School must allocate its resources in a manner which is consistent with the SNA's terms and conditions of employment.
EMPLOYER'S ARGUMENTS:
4. 1. The School takes full cognisance of Circular 59/2006 and applies its seniority provisions where and when appropriate.
2. The Special Education Needs Officer (SENO) decided to reduce the School's allocation of SNAs from five posts of 23.5 hours per week and one of 12.5 hours per week to six posts of 12.5 hours per week.
3. The School would have jeopardised funding for the SNAs from the Department of Education & Science if it ignored the SENO's decision and applied the terms of Circular 59/2006.
DECISION:
This is an appeal by the Union on behalf of the Claimant of a Rights Commissioner’s Recommendation which found against her claim that due consideration should have been given to her seniority in the School when the Principal of the School allocated working hours for Special Needs Assistants (SNAs) in March 2009.
The Claimant was employed by the School as an SNA in the School. Following a review of SNA provision in the School by the National Council for Special Education (NCSE) in March 2009, the decision of the Special Education Needs Officer (SENO) was to sanction six SNA posts each working 12.5 hours per week.
The Principal of the School implemented the SENO’s decision by reducing five SNAs’ working hours from 23.5 hours per week to 12.5 hours per week (one SNA was already on 12.5 hours per week). The Union disputed this course of action on the basis that it was in breach of agreed seniority arrangements as provided in Department of Education and Science Circular 0059/2006 ('the Circular'). It held the view that instead of reducing the hours of work of all five SNAs it should have reduced the number of SNA posts. By adhering to the Circular, it was argued that the Claimant along with another senior SNA would have retained their working hours at 23.5 while other SNAs would have been made redundant.
Circular 0059/2006 states:
- '2.1 The sequence in which special needs assistants are approved to Primary, Secondary, Community and Comprehensive schools or Vocational Education Committees determines their seniority. The seniority is important in determining which special needs assistant(s) should be offered reduced hours or have their employment terminated when the allocation of the school is reduced. The seniority listing will be used in determining last in first out for the purpose of redundancy.'
The Rights Commissioner in her Recommendation found that in the circumstances which prevailed in the school at the time that“The seniority factor did not apply”. Furthermore she held that“the school implemented the decision of the Special Needs Education Organiser in the manner in which they believed most benefited the children, and without recourse to making staff redundant.”
Having considered the submissions of both sides the Court notes that the requirement for SNAs is determined annually by the NCSE (on the basis of the review carried out by a SENO). It is encumbent on the Principal of the School to carry out that decision. The Court finds that in the circumstances in the instant case it was not necessary to apply the seniority factor as the Principal was given authority for six posts at 12.5 hours per week each and she implemented that decision accordingly. However, the Court also notes from subsequent events that when the allocation was successively both increased and reduced further, the Principal implemented the Circular in accordance with its terms i.e. seniority was used to determine how hours were allocated.
Therefore, the Court accepts that the School adhered to the Circular where it was appropriate to do so. On that basis the Court concurs with the finding and Recommendation of the Right’s Commissioner and the appeal fails.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
29th September, 2010______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.