FTD162

FULL RECOMMENDATION

FTC/14/25

DETERMINATIONNO.FTD162

(R-130172-FT-13/DI)

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003

PARTIES :

BOARD OF MANAGEMENT OF A SCHOOL
(REPRESENTED BY MAXWELL SOLICITORS)

- AND -

A TEACHER
(REPRESENTED BY HAYES SOLICITORS)

DIVISION :

Chairman: Mr Duffy
Employer Member: Mr Marie
Worker Member: Ms Tanham

SUBJECT:
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 February, 2016. The following is the Labour Court's Determination.

DETERMINATION:

This matter came before the Court by way of an appeal by the Complainant against the decision of a Rights Commissioner in his claim under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act).

The matter was previously before the Court on 29^thAugust 2014. The Court issued Determination FTD1416 on 2^ndOctober 2014 in which it allowed the appeal and held that the Complainant had accrued an entitlement to a contract of indefinite duration.

The Determination of the Court was appealed to the High Court on a point of law. In a judgment deliver on 6^thOctober 2015 the High Court allowed the appeal and remitted the matter to this Court for rehearing.

The parties made extensive written submissions and the Court held an oral hearing on 29^thFebruary 2016.

Having heard the parties and having read the submissions filed in the case the Court determines as follows: -

1. The Complainant’s appeal is allowed and the decision of the Rights Commissioner is set aside,
2. The Court is satisfied that the Complainant did accrue an entitlement to a contract of indefinite duration by operation of section 9(3) of the Act with effect from 1^stSeptember 2010.

In light of the findings set out above the parties are agreed that the following consequences flow from the Determination of the Court: -

(a) The Complainant will be reinstated in the post that he held with the Respondent with effect from 1^stSeptember 2010,
(b) The Complainant will have seniority in his employment giving effect to his achievement of a contract of indefinite duration as of 1^stSeptember 2010, in line with the terms of Circular 15/16 and the consent of the Patron of the Respondent,
(c) Pursuant to the Determination of the Court the Complainant is entitled to arrears of remuneration in respect of pensionable service accruing since 31^stAugust 2012 to the date on which reinstatement takes effect.
(d) Payment of any arrears of remuneration will commence on receipt of funding by the Respondent to make payment of any such arrears or payment by the Department of Education and Skills, whichever is the earlier
(e) The arrears of remuneration which has accrued to the Complainant in the period from September 2012 to June 2015 is in the amount of €88.397.00

The Court determines

Signed on behalf of the Labour Court

Kevin Duffy
CO'R______________________
1st March, 2016Chairman

NOTE

Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.