FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SCOILL MHUIRE NATIONAL SCHOOL - 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 Of Recommendation Of A Rights Commissioner R-088316-IR-09
BACKGROUND:
2. The issue before the Court concerns an appeal of Rights Commissioner's Recommendation No. R-088316-IR-09. The Worker has been employed as a Special Needs Assistant (SNA) with the school since September, 2009. The working hours for such a position are divided into full-day, junior-day and specified number of hours. The Worker concerned worked full-day hours. In October, 2009 the School's allocation of SNA hours were reduced from two full-day posts and one junior-day post to two junior-days and one 15 hour post. This resulted in an 8.5 hour per week reduction in the Worker's hours. The Union sought to have the posts allocated in such a way as to maximise the number of full-day posts by use of the 15 hours available. No agreement could be reached.
The matter was referred to a Rights Commissioner for investigation. On 29th June, 2010 the Rights Commissioner issued his recommendation as follows:
"I am not in a position to make a favourable recommendation on behalf of the claimant in this case as the respondent in the absence of alternative arrangements or agreement must have priority right in the allocation of posts to meet service needs. However it seems to me that her seniority entitles her to have full day hours restored at the first available opportunity based on service need and school allocation."
The Union appealed the Rights Commissioner's Decision to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969 on the 23rd July, 2010. A Labour Court hearing took place on the 23rd November, 2011.
UNION'S ARGUMENTS:
3. 1 The allocation of 15 hours could be distributed in order to maintain as many full time positions as possible. The Worker is entitled to maintain her full-day status due to her seniority as outlined in Circular 0059/2006 of the Department of Education and Skills.
COMPANY'S ARGUMENTS:
4. 1 The School regrets any reduction in SNA hours which occurred arising from the revision in resource allocation notified by the National Council for Special Education.
DECISION:
This claim came before the Court by way of an appeal from the Recommendation of a Rights Commissioner and was for compensation for loss of earnings incurred by the Claimant, a Special Needs Assistant (SNA) in the School, as a result of a reduction of 8.5 hours in her weekly working hours in October 2009.
The background is that the Claimant has been employed by the School as an SNA since 13thSeptember 1999 and is the longest serving SNA in the School. SNA hours are allocated to the School each year having regard to its pupils special needs’ requirements year-by-year by a Special Education Needs Officer (SENO). SNA hours are allocated on the basis of a senior day full-time post (32 hours per week), a junior day infant post (23.5 hours per week) or a specified number of hours per week (part-time posts) depending upon the School’s requirements.
Prior to October 2009 the School’s SNA hours’ allocation had been 87.5 hours per week, consisting of three SNAs comprising two senior day full-time SNAs (64 hours) and one junior day infant SNA (23.5 hours).
On receiving the School’s special needs’ requirements in October 2009 the SENO reduced the School’s weekly allocation of SNA hours marginally from 87.5 hours to 85.5 hour but with significant changes to the application of the hours in terms of both their timing and SNA posts having regard to the changed requirements of the special needs pupils attending their School. This involved changing the two senior day full time SNA posts to two additional junior day infant SNA posts and the allocation of an additional fifteen hours per week SNA part-time post.
This resulted in a revised configuration of SNA posts in the School to cover the revised allocation of 85.5 hours per week comprising three junior day infant SNA posts (23.5 hours x 3) and an additional fourth SNA part-time post (15 hours per week.
The reason for both the revised SNA hours’ allocation and the revised SNA posts’ configuration was the changed special needs pupils’ requirements necessitating a more spread-out special needs teaching schedule and the requirement for four SNAs to be present from 11:00am to 2:00pm every school day to attend to the intimate care, toileting and supervision needs of the special needs pupils. The SNAs were advised of the result of this review on 23rdOctober 2009 and the SENO subsequently met them in the School. The changes were effective from 2ndNovember 2009 and resulted in the two most senior SNAs (the Claimant being the more senior of the two) reverting from senior day-full-time SNA posts (32 hours per week) to junior day infant SNA posts (23.5 hours per week) with effect from that date with the Claimant retaining her full-time rate of pay until 14thDecember 2009 because of her length of service.
The Claimant disputed her reversion to a junior day infant post arguing that the reduced weekly allocation of SNA hours (not disputed) did not have to result in the revised SNA posts’ configuration in the School and that instead she should have retained her senior day full-time SNA post and that as the most senior (longest serving) SNA in the School she was entitled to retain her post under Circular 0059/2006 of the Department of Education and Skills which sets out the rules governing the Seniority of SNAs.
The School refuted the Claimant’s claim contending that the SENO’s revised weekly allocation of both SNA hours and posts was required as a result of the changes in the special needs pupils attending the School and their consequently changed requirements which necessitated a greater spread of SNA hours throughout the school week generally and the requirement for four SNA s to be present for three hours in the middle of every school-day to attend to the special needs pupils’ personal needs in particular.
The School argued that the special needs pupils’ requirements were its primary obligation as reflected in the SENO’s revised SNA Allocations which required the revised SNA posts configuration which it further contended did not breach the seniority rules in Circular 0059/2006.
The Court has carefully considered both the written and the oral submissions of the two parties. The Court is satisfied that the decision of the School to reduce the Claimant’s weekly hours was taken because of the changed special needs pupils’ requirements which resulted in the SENO’s revised SNA Allocations and that it was impractical to apply those in a manner which favoured the Claimant while simultaneously optimising the available SNA hours to meet the special needs pupils’ requirements and having regard to the particular constraints around the middle of the school-day.
The Court is also mindful that another SNA with service from 2001 was similarly affected as the Claimant and the respondent School told the Court that it was also concerned to apply the revised SNA allocations as fairly as possible between the three SNAs. The Court is also satisfied that that was both reasonable and appropriate in all the circumstances and that it did not breach the seniority rules in Circular 0059/2006.
The Court is further satisfied that a reasonable level of information and consultation took place with the affected SNAs.
Finally, the Court notes that when the respondent Schools’ SNA hours’ allocation was subsequently increased at the beginning of the 2011/2012 School year the Claimant was restored to a senior day full-time SNA post.
The Court rejects the Claimant’s appeal and upholds the Recommendation of the Rights Commissioner in the above terms.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
9th January, 2012______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.