UD2169/2011

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                           CASE NO.

 EMPLOYEE -claimant

                                                                                                                UD2169/2011

against

EMPLOYER -respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Mr P.  Hurley

Members:     Mr J.  Hennessy

                     Ms H.  Henry

heard this claim at Thurles on 27th May 2013

Representation:

Claimant:         The claimant’s husband

Respondent:   

Background:

The respondent in this case is a primary school.  In September 2009 the school was allocated a number of resource teaching hours.  The principal of the school came to hear of the claimant who was carrying out resource teaching within other schools in the locality.  The claimant accepted the hours within the school and she proved herself very capable.  The hours for the following school year increased to 13.5 hours and the claimant worked these hours for the 2010/2011 school year.

The Tribunal heard that the Rights Commissioner Service had decided a claim under the Terms of Employment (Information) Acts.  In giving evidence to the Tribunal, the principal of the school acknowledged that he had not provided the claimant with contracts of employment.  However, it was the respondent’s case that forms signed by the claimant would show that the employment was on a fixed-term basis.  The forms referred to were primary teacher appointment forms for salary purposes and were returned to the Department of Education and Science (herein after referred to as the Department).  In section 3.2 under the heading of part-time there were three boxes.  One labelled regular part-time, one labelled fixed term part time and one labelled contract of indefinite duration (CID).  The fixed term part time was the box selected and both the claimant and the principal had signed at the end of the form.   

The claimant’s employment was uneventful until circular 30/2011 issued from the Department.  The circular outlined that the allocation of teaching resources was to take place in the context of the Programme for National Recovery, the EU/IMF Programme of Support for Ireland and the Public Service Agreement 2010-2014.  The circular states:

“Consequently it is necessary for the Department to ensure this year that all permanent and fixed term positions are in the first instance made available to those permanent and CID holding teachers that are surplus and are to be redeployed.

This means that until further notice and in accordance with the redeployment arrangements set out in Circular 19/2011 no school can be given authority to commence recruitment to either full or part-time posts until those permanent and CID holding teachers have been redeployed.”

As a result of the circular the hours were to be offered to full-time post holders to the exclusion of part-time post holders and the principal now found himself in a position where he had to consider those teachers who held a contract of indefinite duration (CID) and offer the school’s resource hours to any permanent post holder in the five other schools in the area, as he was obliged to give them the hours available.  The resource teaching hours were also reduced by 10%.

The claimant held the view that she was on a contract of indefinite duration and therefore entitled to be offered the resource teaching hours.  As a result the principal wrote letters dated 16 and 28 June 2011 to the Department in relation to this issue.  The Department responded by letter dated 8 July 2011 stating:

“The award of a Contract of Indefinite Duration (CID) is not warranted in this case as the staff member does not meet the criteria set out in Circular 34/2009.  The staff member does not have four years continuous teaching service, under two or more successive written contracts of employment with the same employer, that were paid for out of monies provided by the Oireachtas.”

The principal subsequently wrote letter dated 10 August 2011 to the Department requesting clarification on a further issue as to whether or not the claimant had conditional recognition from the Department and Teaching Council to teach resource hours only.  The claimant although not a qualified national teacher was always paid at the trained rate, as she was a qualified secondary teacher, held the Ceard Teastais and was registered with the Teaching Council.

A response was received from the Department dated 17 August 2011.  It stated:

“To be eligible to teach in a Resource Post in a primary school, a teacher must be registered under Regulation 2 (Primary) or 3 (Montessori & Other) of the Teaching Council.  The claimant is registered under Regulation 4 (Post Primary Teacher) she is therefore not considered appropriately qualified to teach in a resource post in a primary school.”

As the claimant did not meet the terms of Circular 40/2010 she was therefore eligible to receive an unqualified rate of pay as a resource teacher in a primary school.  The letter further stated that the claimant should have no expectation to return to a post to which she was appointed pending the recruitment of an appropriately qualified and registered teacher. 

As an interim measure the claimant was offered the resource hours for the coming school year but at an unqualified rate and without holiday pay.  The claimant refused this offer.  It was the respondent’s case that the claimant failed to mitigate her loss by refusing to accept the hours offered.

The claimant was informed by letter dated 18 August 2011 that the school was obliged pursuant to the policy of the Minister to employ teachers registered with the Teaching Council with qualifications appropriate to the section and suitable to the post for which they are employed.  The letter informed the claimant: “In the circumstances the Board is not, at this time, in a position to renew your contract of employment for the forthcoming year.”

However, the claimant maintained at all times that she was appropriately qualified.

Both parties had secured a witness subpoena for the Registration Officer of the Teaching Council which is the registration council for the teaching profession in Ireland.  A teacher can be registered under one or more categories of the following regulations: (1) general material, (2) primary teacher registration, (3) registration of Montessori and other categories –teachers registered under this category are usually resource teachers where Irish is not required; (4) post-primary (5) further education.   On 9 October 2008 an application was received from the clamant for post-primary registration.  Once the claimant returned the form she was registered in this category from 16 March 2009.

On 26 May 2011 a letter and payslips were received from the claimant and from then until August 2011 she sought dual registration on the basis of her qualification.  The Registration Officer considered the matter and reviewed the Department’s circulars and queried the teaching register.  There were a small number of other teachers registered with the same qualification as the claimant in regulation 3 (Montessori and other categories which incorporated resource teaching).  Given these precedents he deemed it appropriate to dual-register the claimant under regulations 3 & 4 in December 2011.

During cross-examination by the respondent the witness confirmed that the claimant was not registered under regulation 3 (Montessori and other categories) during the summer of 2011.  During cross-examination by the claimant the witness stated that he did not backdate the claimant’s registration on the confirmation of registration document which he had issued.   This document was opened to the Tribunal.  The date that the claimant was first entered on the Teaching Council’s register was stated on this document as 8 June 2009.  The witness stated that the claimant’s original registration had been added to in response to the claimant’s correspondence.

Determination:

It is clear from the evidence that there was no written contract of employment for a specific period of time or purpose.  The claimant was employed from 1 September 2009 as a resource teacher on a continuous basis.  As a result of the issuing of circular 30/2011 in May 2011, the principal raised a query in relation to the claimant’s qualification in August 2011.  The Tribunal rely on the Department’s letter dated 17 August 2011 to the principal of the respondent school, in which it was stated that the claimant was not considered appropriately qualified to teach in a resource post in a primary school.

Acting on that letter the principal believed he could not continue the claimant’s employment.  At all times the claimant was satisfied that she was appropriately qualified and established this fact through confirmation from the Teaching Council on 8 December 2011 which stated that she was eligible albeit with restrictions.  It was the evidence of the Registration Officer that the claimant’s status, qualifications and eligibility remained unchanged from 2009 to December 2011. 

The Tribunal finds that the evidence from the Registration Officer and the confirmation of registration document outweighs the dismissal letter dated 18 August 2011 from the Chairperson of the Board of Management which informed the claimant that she was not considered appropriately qualified to teach in a resource post.  The Tribunal finds this cannot be upheld in light of the evidence of the Registration Officer.

The Tribunal finds that the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds.  The Tribunal is not satisfied that the claimant has made sufficient efforts to mitigate her loss and therefore considers the appropriate sum of compensation to be €35,000.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)