FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001 PARTIES : BLACKROCK COLLEGE (REPRESENTED BY MASON HAYES & CURRAN) - AND - MARY BROWNE (REPRESENTED BY BCM HANBY WALLACE SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Rehearing Arising From Labour Court Determination No. PTD091.
BACKGROUND:
2. An appeal was submitted to the Labour Court in accordance with Section 17(1) of the Protection of Employees (Part-Time Work) Act, 2001. A Labour Court hearing took place on the 2nd July, 2012. The following is the Court's Determination:
DETERMINATION:
- This Determination should be read in conjunction with Determination PTD091 issued on 3rdFebruary 2009.
Background
This matter came before the Court by way of an appeal by Blackrock College (hereafter the Respondent) against the decision of a Rights Commissioner in a claim by Ms Mary Browne (hereafter the Claimant) under the Protection of Employees (Part-Time Work) Act 2001. The Claimant is a teacher employed by the Respondent and works in a part-time capacity. She claimed equality of employment conditions with a named full-time teacher.
The Claimant is paid directly by the Respondent out of its own resources and her terms and conditions of employment are determined solely by the Respondent. The Comparator is paid by the Department of Education and Skills and his terms and conditions of employment are determined by the Minister for Education and Skills.
On that account, the Respondent contended that the nominated comparator is not an appropriate comparator for the purposes of the Act. Without prejudice to its position in that regard the Respondent contended that there were objective grounds justifying any difference in employment conditions as between the Claimant and the comparator.
A hearing of the appeal was held on 21stJanuary 2009 before a differently constituted Division of the Court (two members of which have since retired). At the commencement of the hearing Counsel for the Respondent urged the Court to determine, by way of a preliminary hearing, the question of whether the comparator nominated by the Claimant was an appropriate comparator for the purposes of s.7 of the Act. The Court was urged to adopt that approach because, it was submitted, considerable expense would be incurred in dealing with the defence of objective justification which would be saved if the preliminary issue were to be resolved in the Respondent’s favour.
Having heard the parties on this point the Court agreed, in ease of the Respondent, to deal only with the preliminary question identified.
Having heard the parties on the preliminary issue, the Court issued Determination PTD091 on 2ndFebruary 2009. In its determination the Court held that: -
1. The nominated comparator is a comparable employee vis-á-vis the Claimant
- 2. The Claimant and the comparator are engaged in like work for the purpose of the Act.
- 3. The Claimant is entitled to succeed in her claim unless the impugned differences are justified on objective grounds.
Having so found, the Court determined that it would proceed to hear the parties on the question of whether or not there were objective grounds justifying the difference in treatment between the Claimant and her comparator.
Decision in Catholic University School v Dooley and Scannell
While a resumed hearing of this case was pending the High Court gave judgment inCatholic University School v Dooley and Scannell[2010] IEHC 496 (hereafter the “CUS case”). This was an appeal on point of law from a determination of this Court under the Protection of Employees (Fixed-Term Work) Act 2003. The central point in issue in that case was identical in all material respects to that dealt with in the preliminary determination in the instant case. In the CUS case, Dunne J held that a teacher paid by a private secondary school and whose terms and conditions of employment were determined solely by the school could not rely on a teacher in the same school whose remuneration was paid by the Department of Education and Skills and whose terms and conditions were determined by the Minister for Education and Skills for the purpose of an identically worded provision of the Act of 2003. In reaching that conclusion Dunne J held that for the purposes of the Act the employer of the comparator must be deemed to be the Department of Education and skills whereas the College was the employer of the Claimant.
Resumed hearing
At the resumed hearing before this Division the parties were asked to assist the Court in deciding how it should proceed in light of the decision of the High Court in the CUS case, which appeared to run directly contrary to the prior preliminary decision in the instant case. Careful and comprehensive written and oral submissions were received from both parties on how the Court should proceed. Counsel for the Claimant submitted that the Court isfunctus officioon the preliminary matter disposed of in its determination of February 2009. In the alternative, and in the event of the Court deciding that the questions addressed in the preliminary determination are still live before it, the Court was urged to consider referring certain questions in the case to the CJEU, pursuant to Article 267 of TFEU, for a preliminary ruling.
Counsel for the Respondent, in reliance on the decision in the CUS case, urged the Court to set aside the decision contained in the preliminary determination and /or make a fresh determination that the Claimant’s claim failed at the outset on the basis that she is not entitled to rely on a comparison with a Department paid teacher whose employer had been held to be the Department by the High Court.
Conclusion
The Court is faced with a significant quandary in this case. At the urging of the Respondent it agreed to issue a preliminary determination on a central question of law arising in the case. After that decision was issued a similar question of law was litigated in the High Court. The High Court reached a different conclusion to that reached by this Court. It is axiomatic that if the decision in the CUS case had been delivered before the decision in the preliminary determination had been perfected the point of law dealt with would have been decided differently. Equally, had the Court been aware that a similar question to that canvassed in the preliminary hearing was likely to be litigated in the High Court it would have stayed the case until the High Court gave judgment.
The question that now falls for consideration is whether, having issued its determination on the preliminary question of law, the Court can or should vacate or set aside its determination in light of the subsequent decision of the High Court in the CUS case, or whether it isfunctus officioin respect to that matter. If the Court isfunctus officioon that point the further question arises as to whether it is obliged to proceed to determine the within claims based on that preliminary determination. Despite the efforts of Counsel on both sides to identify some authority that could guide the Court none could be identified nor could the Court itself identify any such authority.
Having carefully considered the very helpful submissions made by the parties the Court has come to the conclusion that it has no jurisdiction or legal authority to vacate or alter the preliminary determination made by a differently constituted Division of the Court. If the decision contained in that determination was erroneous in point of law that error will have to be corrected by the High Court and not by this Court itself. It follows that the Court must proceed to determine the outstanding aspects of the case on the basis of the preliminary determination. In these circumstances the Court does not believe that there is any question pending before it upon which it could seek the guidance of the CJEU under Article 267 of TFEU.
There are two outstanding issues, namely, whether there are objective grounds justifying the impugned differences in treatment and, if not, the redress to which the Claimant is entitled.
Objective Justification
The Respondent did make written submissions relating to the costs which would be associated with affording the Claimant parity of treatment with the Complainant. This, it was submitted, amounted to objective justification for maintaining the differences complained of. However, these submissions were not pursued at the hearing and no evidence was tendered at the hearings to show the existence of objective grounds justifying the difference in treatment, other than to argue that the claim was misconceived in light of the decision in the CUS case.
Overall conclusion
In light of its decision in the preliminary determination, and in the absence of any objective grounds justifying the different treatment of the Claimant and her comparator, the Court must hold that the within claim is well founded.
Determination
The Court determines that the Claimant is entitled to the same terms and conditions of employment as those afforded to her nominated comparator with effect from a date six months prior to the date on which her claim was initiated before the Rights Commissioner.
The decision of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
18th July 2012______________________
SCChairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.