FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : BOARD OF MANAGEMENT ST. JOSEPH'S SCHOOL FOR DEAF BOYS (REPRESENTED BY MAXWELL SOLICITORS) - AND - PHILIP GREHAN (REPRESENTED BY INTO) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal against a Rights Commissioner's Decision r-130172-ft-13/DI.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on the 25th June, 2014. A Labour Court hearing took place on the 29th August, 2014. The following is the Labour Court's Determination-
DETERMINATION:
This is an appeal of by Mr. Philip Grehan (the Complainant) against the Decision of a Rights Commissioner in which he found against him in his claim taken under Sections 8 and 9 of the Protection of Employees (Fixed-Term Work) Act 2003 (the Act).
At the Rights Commissioner hearing the Complainant claimed that his employer, the Board of Management of St. Joseph's School for Deaf Boys (the Respondent) failed to provide him with a contract of indefinite duration in circumstances where he became entitled to such a contract pursuant to Section 9(2) of the Act.
On 21st January 2013, the Complainant submitted a complaint to the Rights Commissioner Service under Section 14 of the Act claiming that the Respondent contravened Section 9(2) of the Act in employing him on five successive fixed term contracts, covering a period of 5 years, and that in accordance with Section 9(3) of the Act, his contract should be deemed a contract of indefinite duration, by operation of law. He also maintains that the Respondent was in breach of Sections 8 of the Act, in that it did not provide him with written statements of the objective grounds justifying the renewal of contracts and the reasons for the failure to offer him a contract of indefinite duration.
The Rights Commissioner upheld the Respondent’s position stating that there were objective conditions justifying the renewal of the contracts and its failure to offer a contract of indefinite duration. He found that the Complainant’s complaint under Section 8 of the Act was outside the time limit for presenting his claim.
Background
The Complainant was employed on five successive fixed term contracts, as follows:-
- 29thAugust 2007- 28thAugust 2008 fixed term contract, the objective grounds stated in that contract were"Absence of a permanent teacher currently on unpaid leave of absence (short term)",and gave the reason why the school could not offer a contract of indefinite duration.
1stSeptember 2008 until 31stAugust 2009 to provide cover for a teacher who was taking adoptive leave. He did not receive a written contract of employment stating the objective conditions determining the contract, or grounds justifying renewal.
1stSeptember 2009 until 31stAugust 2010 to provide cover for a teacher who was taking a one year career break. He did not receive a written contract of employment stating the objective conditions determining the contract, or grounds justifying renewal.
1stSeptember 2010 to 31stAugust 2011 following interview for advertised temporary position, he was offer a fixed term position. He did not receive a written contract of employment stating the objective conditions determining the contract, or grounds justifying renewal.
1stSeptember 2011 to 31stAugust 2012, he was offered a further fixed term contract by the Principal who did not specify at this time how it came to be that this post was available in the school, he did not receive a written contract of employment. The Complainant was later advised verbally by the Principal that his employment for that school year arose by virtue of cover being required for a permanent member of staff who was on approved leave. When that staff member retired in February 2012, the Complainant continued to work in the school for the remainder of the school year.
Summary of the Complainant’s Case
- Section 9 Claim
Ms Deirdre O’Connor, INTO on behalf of the Complainant, claimed that the Respondent was in breach of the Act as the Complainant was not given a contract of indefinite duration when it became due on 1stSeptember 2010 by operation of law and that it failed to give him details of the objective condition justifying the renewal of the fixed term contract and the failure to offer a contract of indefinite duration.
Ms O’Connor told the Court that in January and December 2011, the Complainant queried the Principal as to whether he was entitled to a contract of indefinite duration by virtue of his service in the school. He was advised that he had no entitlement because he had"subbed for different teachers in the school".
Ms O’Connor said that in June 2012, there was no discussion with the Complainant about continued employment, but neither was it made clear that his employment was terminated. On 20thAugust 2012, the Principal told him that there would be no position for him in the school for the following school year, which was to commence the following week. The Complainant subsequently discovered that a teacher with only 2 years’ service was retained by the school for the 2012/2013 school year on a fixed-term basis.
The Complainant's employment came to an end on 31stAugust 2012.
Ms O’Connor told the Court that she did not accept the Respondent’s contention that the information contained in the Primary Teacher Appointment Form, which the Complainant was required to sign at the commencement of each of the fixed term contracts, satisfied the requirements set out in Section 8(1) and 8(2) of the Act. She said that the Form for 2010/2011 refers to the origin of the post as secondment, but the name of teacher being replaced is left blank. The Form for 2011/12 refers to secondment, and names Ms K as the teacher being replaced, the Complainant maintained that this detail was inserted after he signed the Form.
Ms O’Connor told the Court that the Complainant had been in employment on three fixed term contracts from 2007- 2010, when he responded to an advertisement for two fixed term posts in July 2010. He was interviewed on 6thAugust 2010, and was advised the same day that he was being offered a fixed term position for the coming academic year. By letter dated 11thAugust 2010, he was offered a temporary position for the school year 2010/2011. He was not given a contract of employment specifying the objective grounds.
On the last day of the school year June 2011, Ms O’Connor said that the Respondent offered the Complainant a further year's employment in the school. It was not specified at this time how it came to be that this post was available in the school. No written contract of employment was furnished to the Complainant, he was later advised verbally by the Respondent that his employment for that school year arose by virtue of cover being required for a permanent member of staff who was on approved leave. However, when that staff member (Ms. K) retired in February 2012, the Complainant continued to work in the school for the remainder of the school year.
The Complainant was informed in 2012 that Ms K’s post was suppressed by the Department of Education and Skills (the Department), leading to the termination of his employment.
Ms O’Connor submitted that the Respondent retrospectively sought to justify its failure to offer him a contract of indefinite duration on the basis that the post was suppressed by the Department. She did not accept that this satisfies the test for objective justification namely that any justification should be strictly construed, should be on the basis of objective and transparent criteria and must be justified in the specific context in which it occurs. Ms O’Connor cited the CJEU caseAdeneler and Ors. V Ellinikos Organismos Galaktos[2006] IRLR 716and also the case of C-307/05,Del Cerro Alonso v. Osakidetza-Servicio Vasco de Salud[2007] IRLR 911.
Ms O’Connor stated that Section 9(4) of the Act allows for a derogation from what is an important social right derived from the law of the European Union. It must, therefore, be construed and applied strictly against the person seeking to rely on the subsection, see the dictum of the CJEU to that effect in Case 476/99Lommers v Minister van Landbouw, Natuurbeheer en Visseri[2002] IRLR430. She contended that if this case law had been followed properly and the specific context and nature of the Complainant’s employment and disability had been taken into account, together with the complete lack of transparency in the manner in which his most recent fixed term contract was renewed, it would not have meet the test of objective justification and the Respondent’s failure to give the Complainant a contract of indefinite duration.
She contended that the fact that the Complainant is deaf constitutes a specific context which should have been taken into account, in terms of the Respondent's responsibilities to him, in particular in making clear the objective conditions for the renewal of contracts.
Ms O’Connor disputed the Respondent’s contention that the Complainant’s contract which commenced in August 2011 was to replace Ms. K. who was on authorised leave. She contended that as Ms K retired in February 2012 therefore the purported objective justification relied upon by the Respondent had ceased to exist at that stage.Ms O’Connor referred to the effect of the delay on the part of the Respondent to notify the Complainant of the retirement of Ms K and the suppression of that post, until 10 days before his dismissal, which delay deprived him of taking action to protect his rights. The Complainant finished work at the end of the school year in June 2012. He fully expected that his employment would continue, and was not given any indication at this point that it would not. He was shocked and taken aback when he was asked to come to the school on 20thAugust 2012 and informed that he would not be employed for the coming year. Subsequently he discovered that a less experienced employee, who had been initially appointed to a fixed term post as a result of the 2010 competition, was being retained on a contract of indefinite duration.
- Section 8 Claim
Ms O’Connor submitted that the Respondent failed to provide the Complainant with a written statement of the objective condition justifying the renewal of the fixed term contract and the failure to offer a contract of indefinite duration as required by Section 8(2) of the Act, and as specified in a Department Circulars 82/07. She disputed the Respondent’s contention that the furnishing of the information in a Primary Teacher Appointment Form was sufficient to satisfy the statutory obligations. These Forms are administrative forms provided by the Department for the purpose of putting teachers on the payroll.Ms O’Connor asserted that the failure to provide the appropriate statements was an ongoing breach of the Act and therefore not outside the time limits set by Section 14 (3) of the Act. .
In support of its position Ms O’Connor cited Labour Court decision inDr Mohammad Khan v HSE North Eastern Region[2006] 17 ELR considered the effect of Section 8 of the Act and found as follows:-
“It seemstothe Court that the purpose of Section8is not just to ensure that a fixed-term employee is informed of the reason why hisorher contract is being renewed. On a reading of the Section as a whole it is clear that it is intendedtoensure that the employer definitively commits itself, at the point at which the contract is being renewed,tothe grounds upon which it will rely if subsequently pleading a defence under Section 9(4).Thus where an employer failstoprovide a fixed-term employee with a statement in writing, in accordance with Section 8(2),it is apt to infer, in accordance with Section 8(4) of the Act, that the grounds subsequently relied upon were not the operative grounds for the impugned decision and it would be for the employer to prove the contrary. "
Summary of the Respondent’s Position
Section 9 Claim
Mr Desmond Ryan, B.L. instructed by Maxwell Solicitors on behalf of the Respondent denied the allegation that the Complainant was dismissed from his employment in August, 2012, he held that the contract expired by effluxion of time and was in compliance with Section 9(4) of the Act, therefore the Complainant was not entitled to a contract ofindefinite duration. He said that the Complainant was employed from September 2006 subbing on fixed term contracts with some intervening gaps and all of the contracts were temporary to replace permanent staff who were on special leave, adoptive leave, career break, or secondment. There were no permanent vacancies in this period in which to appoint the Complainant. He said that the Complainant was a very talented and valued Teacher.
Mr Ryan stated that the 2010/2011 and 2011/2012 contracts were for the purpose of replacing a named permanent post holder (Ms. K) who was on an approved Scheme of Leave of Absence. This post was suppressed by the Department as the School had more teachers than the current regulations required. As a consequence of the Department’s actions the Complainant’s post was vacated and his contract could not be renewed.
Mr Ryan submitted that the fixed term contracts furnished to the Complainant were for the purpose of achieving a legitimate objective of the Respondent and such treatment was necessary and appropriate for the purpose. He submitted that in renewing the Complainant’s employment for 2011/2012 it complied with the objective justification requirements under Section 9(4) of the Act, as the Complainant continued to substitute for the teacher on approved Scheme of Leave of Absenceand for this reason he was not granted a contract of indefinite duration. In support of its contention on objective justification, the Respondent relied upon the High Court cases ofRussell v Mount Temple Comprehensive School[2009] IEHC 533 and in the more recent decision ofHealth Service Executive v Sallam[2014] IEHC 298.
- Section 8 Claim
Mr Ryan submitted that there were a number of oral contracts with the Complainant, the particulars of same which were backedup with Primary Teacher Appointment Forms that were completed by the Complainant and signed before the commencement of the new academic year. Therefore, Mr Ryan contended that the Complainant was aware at all times of theconditions and purpose of his temporary employment, this he submitted satisfies the requirements of Sections 8(1) and 8 (2) of the Act.In any event, it was contended by Mr Ryan that the Complainant’s claim under Section 8 was out of time.
Mr Ryan stated that at thetime of the commencement of the 2011/2012 contract the Respondent was not aware of the pending retirement of Ms K. This only came to light in October/November,2011 into January 2012 and came about by reason of a change in legislation with regard to pensions and lump sum payments which Ms K decided to avail of and she went out on early retirement in February/April2012.Mr Ryan submitted that the fact that the Department funded the Complainant'sposition to the end of his fixed term contract term does not breach theobjective justification provisions of Section 9 (4) of the Act.This came about through the efforts made by the Respondent to retain him during the term set out in the contract.
Mr Ryan told the Court that two teacher posts were filled on foot of an advertisement for two temporary, fixed term Special Class Teachers in July 2010, the Complainant applied for these positions, but was unsuccessful. The successful candidates’ contracts commenced in September 2010. One of these was filled by a person with specialised qualifications and the other by Ms O’ S who had the same qualification as the Complainant. She continued on a fixed term basis and was given a contract of indefinite duration signed by both parties on 6thFebruary 2014 and backdated to 1stSeptember 2013, pursuant to the Haddington Road Agreement, which states:-
- FIXED –TERM/ PART-TIME EMPLOYMENT IN TEACHING
An Expert Group will be established to consider and report on the level of fixed-term and part-time employment in teaching, having regard to the importance for teachers of employment stability and security and taking account of system and school needs and Teaching Council registration requirements.
This group will as a first task report on reducing the qualification period for the granting of a contract of indefinite duration (CID) from 4 years to 3 years to take effect for the 2014/15 school year. Arrangements will be made in relation to those entering their fourth year in September 2013 with a view to the early application to them of this provision.
The Law
In this case the relevant statutory provisions are to be found in Sections 7, 8 and 9 of the Act. The Act was enacted so as to transpose into domestic law the Framework Agreement on fixed term work concluded by ETUC, UNICE and CEEP annexed to Directive No. 1999/70/EC of 28 June 1999 of the Council of the then European Communities. Consequently the provisions of the Act must be interpreted and applied so as to achieve the objective pursued by the Framework Agreement.
The purpose of Clause 1 of the Framework Agreement is twofold. Firstly, to improve the quality of fixed term work by applying the principle of equal treatment to fixed term workers. Secondly, it is intended to provide a framework for the prevention of abuse arising from the successive use of fixed-term employment contracts.
Section 9(2) of the Act, which is relevant for present purposes, provides:-
- (2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed four years.
Section 9(4) provides that subsection (2) and (3) does not apply were there are objective grounds justifying the renewal.
Section 7 (1) of the Act deals with what constitutes objective grounds for this purpose and provides:
- (1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a fixed-term employee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of a fixed-term employee's contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.
Subsection (3) of Section 9 of the Act is of particular significance in the instant case. It provides:
- (3) Where any term of a fixed term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.
InMinister for Finance v Una McArdle[2007] 18 ELR 165 Laffoy J quoted with approval the following passage from this Court’s Determination in the case in which the effect Section 9(3) was considered:
- “That section applies to a situation where an employee is given a renewed fixed-term contract in contravention of subss. (1) or (2). In such a case subsection (3) would operate so as to render void, ab initio, the term of the contract which purports to provide for its expiry by effluxion of time, or the occurrence of an event. Hence, by operation of law the offending term would be severed from the contract thus altering its character from one of definite duration, or fixed term, to one of indefinite duration. However, the remaining terms and conditions of the contract would be unaffected including terms as to pensionability and termination, which, as already observed, would have had to be aligned with those of a comparable permanent employee in accordance with the section."
Section 9(4) of the Act allows an employer to renew a fixed-term contract in circumstances which would otherwise contravene subsections (1) or (2)where there are objective grounds for so doing. This provision allows for a derogation from what is an important social right derived from the law of the European Union. It must, therefore, be construed and applied strictly against the person seeking to rely on the subsection (see the dictum of the CJEU to that effect in Case 476/99Lommers v Minister van Landbouw, Natuurbeheer en Visseri[2002] IRLR 430. As in any case in which a party relies on a statutory defence it is for that person to prove the facts necessary to make out the defence.
- Objective Reasons
Where there are objective grounds for so doing Section 9(4) of the Act renders lawful a renewal of a fixed term contract beyond the period normally permitted by Section 9(1) or 9(2) of the Act. Section 7 of the Act, the terms of which are set out earlier in this determination, defines what is meant by objective grounds in that context.
There is a line of authorities in the jurisprudence of the CJEU dealing with how the notion of objective grounds should be applied. InAdenelerthe Court first considered the underlying rationale for the Framework Agreement. It said, at par 61 of its judgment:
- "The Framework Agreement proceeds on the premise that employment contracts of indefinite duration are the general form of employment relationship, while recognising that fixed-term employment contracts are a feature of employment in certain sectors or in respect of certain occupations and activities (see paragraphs 6 and 8 of the general considerations in the Framework Agreement)."
The Court then continued at par 62:
- "Consequently, the benefit of stable employment is viewed as a major element in the protection of workers (see Mangold, paragraph 64), whereas it is only in certain circumstances that fixed-term employment contracts are liable to respond to the needs of both employers and workers (see the second paragraph of the preamble to the Framework Agreement and paragraph 8 of the general considerations)."
The Court went on to hold, at pars 69-70: -
- “[T]he concept of 'objective reasons', within the meaning of clause 5(1)(a) of the Framework Agreement, must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable in that particular context of justifying the use of successive fixed-term employment contracts.
Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State.”
- “....that concept requires the unequal treatment at issue to be justified by the existence of precise and concrete factors, characterising the employment condition to which it relates, in the specific context in which it occurs and on the basis of objective and transparent criteria in order to ensure that that unequal treatment in fact responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose.”
Finally, the provision of Section 8 of the Act should be considered. This provides: -
- “(1) Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is—
arriving at a specific date,
completing a specific task, or
the occurrence of a specific event.
(2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.
(3) A written statement under subsection (1) or (2) is admissible as evidence in any proceedings under this Act.
(4) If it appears to a rights commissioner or the Labour Court in any proceedings under this Act—- (a)that an employer omitted to provide a written statement, or
(b) that a written statement is evasive or equivocal,
the rights commissioner or the Labour Court may draw any inference he or she or it consider just and equitable in the circumstances.”
InDr Mohammad Khan v HSE North Eastern Region[2006] ELR 313, this Court said the following in relation to the effect of this section of the Act: -
- "It seems to the Court that the purpose of Section 8 is not just to ensure that a fixed-term employee is informed of the reason why his or her contract is being renewed. On a reading of the Section as a whole it is clear that it is intended to ensure that the employer definitively commits itself, at the point at which the contract is being renewed, to the grounds upon which it will rely if subsequently pleading a defence under Section 9(4). Thus where an employer fails to provide a fixed-term employee with a statement in writing, in accordance with Section 8(2), it is apt to infer, in accordance with Section 8(4) of the Act, that the grounds subsequently relied upon were not the operative grounds for the impugned decision and it would be for the employer to prove the contrary."
- Failure to provide a written statement of objective grounds
The Court notes that the Respondent’s contention that the Complainant’s completion of the Primary Teacher Appointment Forms discharged its obligations under the Act. The Court is satisfied that that Form was for payroll purposes, it did not provide the information which is specifically required by Section 8 of the Act. As was pointed out by this Court inGalway City Council v Mackey(FTD5/2006), what is prescribed by the Act is a mandatory requirement which admits of no exceptions and a failure to apply this provision of the Act can neither be overlooked nor excused.
Accordingly, the Court is satisfied that the Respondent did contravene Section 8 of the Act in relation to the Complainant.
- Right to a Contract of Indefinite Duration
The Complainant’s case is that on 1stSeptember 2010 when he was given a renewed fixed term contract to expire on 31stAugust 2011, as the aggregate duration of his fixed-term employment would extend beyond four years, this contract became a contract of indefinite duration by operation of Section 9(3) of the Act. Furthermore, he contended that as the Respondent did not furnish him with a written contract of employment setting out the objective grounds relied upon, the Court must find that no such objective grounds existed.
In considering if the renewal of a fixed-term contract gives rise to a contract of indefinite duration the Court must look no further than the objective grounds relied upon for the contract thatprima faciecontravenes Section 9(2) of the Act. That appears to be the import of the decision of the High Court inHSE v Umar[2011] 22 ELR 229. In this case the Respondent contended that the reason why the Complainant was employed on fixed term contracts from 1stSeptember 2010 was for the purpose of replacing a named person, Ms K, who was on approved Scheme of Leave of Absence. However, no written contracts were furnished to the Complainant.
The Respondent produced a letter for the Court, sent to it from the Department dated 19thJuly 2010. This letter approved the funding of a fully qualified teacher to replace the seconded teacher (Ms K). It stated that the“funding of the replacement teacher’s contract will cease on the termination of the secondment of [Ms K]”and instructed the Board of Management to“include in the contract of the replacement teacher a statement to the effect that he/she is being appointed to replace a teacher on secondment”. It is not disputed that neither this letter nor such a written contract were ever furnished to the Complainant. Furthermore, the Court notes that the Department issued a Circular [Circular 0055/2008] to the “Management Authorities of Voluntary Secondary, Community and Comprehensive Schools” outlining the requirements under the Act in order to advise school authorities of the terms agreed for implementation of the Act. At Clause 3.2.5 of this Circular it states that“a teacher engaged on a fixed term contract shall receive written terms of employment …… Each statement of terms of employment shall contain the objective conditions determining the fixed term contract.”
The Respondent relied upon the Primary Teacher Appointment Form to substantiate its position that the Complainant was informed of the objective nature of his fixed term contract and that he was replacing Ms K who was out on special approved leave. Having examined the Forms for the academic years 2010/2011 and 2011 /2012 (albeit that they were for payroll purposes only), it is clear to the Court that there was no mention in the former Form of the reasons for the temporary nature of the contract, and while the latter Form does include a reference to Ms K as the person on secondment, the Complainant told the Court that when he signed it there was no reference to Ms K or the temporary reasons cited on the Form.
Essentially the Court is being asked not only to accept that the Form constituted a written contract which is non-existent but to insert into that contract a clause which had not been identified to the Complainant at the time. All of which was required both by the Department Circular 0055/2008 and its letter dated 19thJuly 2010. In these circumstances it seems to the Court that Section 8(4) of the Act comes in to play.The purpose of Section 8 is not just to ensure that a fixed-term employee is informed of the reason why his or her contract is being renewed. On a reading of the section as a whole it is clear that it is intended to ensure that the employer definitively commits itself, at the point at which the contract is being renewed, of the grounds upon which it will rely if subsequently pleading a defence under Section 9(4). Thus where an employer fails to provide a fixed-term employee with a statement in writing, in accordance with Section 8(2), it is apt to infer, in accordance with Section 8(4) of the Act, that the grounds subsequently relied upon were not the operative grounds for the impugned decision and it would be for the Respondent to prove the contrary.Therefore, the Court finds that there were no objective grounds justifying the renewal of the contract on 1stSeptember 2010 on a fixed term basis and the renewal is not covered by the provisions of Section 9(4).
Having considered the submissions of both sides the Court is satisfied that the contract dated 1stSeptember 2010 gave rise to an entitlement to a contract of indefinite duration since it purported to extend the period of his fixed-term employment beyond four years and hereby determines that it became one of indefinite durationon the same terms and condition as his fixed term contract, by operation of Section 9(3) of the Act, with effect from the 1stSeptember 2010.
Redress
It is accepted that since the termination of his employment on 31stAugust 2012, the Complaint has continued to be employed by the Respondent filling in for absent colleagues. In all the circumstances of this case the Court is of the view that the most appropriate redress is an order directing that the Complainant be reinstated with effect from 1stSeptember 2010 and to pay him arrears of remuneration (if any) accruing to him since the date of his dismissal up to the date on which the reinstatement takes effect. In ordering this form of redress the Court is influenced by the Respondent’s comments that it had the highest regard for the Complainant who served the school and pupils diligently with a high standard of teaching and that his teaching record, expertise and insight into deaf culture was a great loss. In its letter to the Department dated 13thDecember 2012, the Respondent stated that“ISL is the primary language for approximately 86% of the pupils – [the Complainant] is the only native ISL user on the primary school teaching staff. “
Furthermore, the Court orders the Respondent to pay an award of compensation in respect of the breach of Section 8, pursuant to Section 14(2)(d) of the Act in an amount which is just and equitable. Having regard to all the circumstances of the case, the Court awards the Complainant the sum of €5,000.
Determination
For the reasons set out herein the Court determines that the Complainant’s appeal be allowed and the Decision of the Rights Commissioner be overturned.
Signed on behalf of the Labour Court
Caroline Jenkinson
2nd October______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.