DWT1716

This is the Complainant’s (Ms Jacqueline Walsh) appeal against a decision of an Adjudication Officer (ADJ-00002099, dated 8 March 2017). The Complainant was employed at all material times as a Special Needs Assistant (SNA) at St Vincent’s Special School.

The Notice of Appeal was received by the Court on 22 March 2017. This appeal was heard in conjunction with the Complainant’s appeal of ADJ-00002101 also dated 8 March 2017. Substantially the same matters are complained of in both sets of proceedings. However, the Respondents in the latter appeal are named as Sharon Gorevan; Fiona Davitt; Theresa O’Loughlin; William Barrett; Patrick J Honehan; Margaret Condon and the Board of Management of St Vincent’s Special School. The appeal comprises three complaints: one under the Terms of Employment (Information) Act 1994 (“the 1994 Act”); the second under the Organisation of Working Time Act 1997 (“the 1997 Act”); the third under section 13 of the Industrial Relations Act 1969 (“the 1969 Act”). The Court was informed at the hearing of the appeal that the reference under the 1969 had become moot by virtue of the Complainant’s resignation from her employment. In any event, the Minister for Education and Skills (“the Minister”) had objected to the Adjudication Officer hearing the complaint referred under the 1969 Act.

Who is the Correct Respondent?

It follows from the duplication of proceedings before it that the Court has first to determine who is the correct respondent. The Court received comprehensive written and oral submissions on behalf of the Complainant, the Board of Management of St Vincent’s Special School and the Minister on this point. The Adjudication Officer found, at first instance, that the correct respondent was the Board of Management of St Vincent’s Special School (“the Board”).

The Complainant’s Solicitor, Mr Grogan, submits that the Court is bound by the decision of the Court of Appeal inThe Minister for Education and Skills v Anne Boyle[2017] IECA 39 (“Boyle”). He points, in particular, to paragraph 78 et seq. of Hogan J’s judgment on the basis of which he urges this Court to find that the correct respondent for the purposes of the within proceedings is the Minister. Submissions on behalf of the Minister, on the other hand, refers the Court to the definition of “employer” within the meaning of section 2 of the Organisation of Working Time Act 1997 and to section 24 of the Education Act 1998 and asks the Court to infer, on the basis of these provisions that the Minister is not the Complainant’s employer; that the Board of Management is not an agent of the Minister and that only the Board could be construed as the Complainant’s employer for the purposes of the within appeal. The Board’s submission is clearly predicated on the assumption that the Board is the Complainant’s employer but at the same time denies that the Board has any responsibility in relation to matters of payment which it submits are the preserve of the Minister as paymaster.

Hogan J inBoyle, traces in great detail the case law in relation to what he refers to as “the nature of the triangular pact identified by Gibson J in [Fox v Higgins(1912) 46 ILTR 222] over 100 years ago [that] still defies any standard conceptual analysis, at least for the purposes of the general law of contract.” (Par 78). Nevertheless, the learned Judge concludes his analysis with the observation that “the legal realities” of the relationship between a teacher/SNA, the Board of the school in which that person is employed and the Minister has two employers: the Board is the employer for certain mattes arising from an express contract with the school; the Minister is the employer for other purposes (such as for example, availing of employment protections in matters relating to pay and remuneration) based on an implied contract between the teacher and the Minister. TheBoylecase specifically related to a claim under the Protection of Employees (Part-time Work) Act 2001, however, the judgment would appear, at least by analogy, to apply to all employment-related protective legislation that impacts on employees’ remuneration entitlements.

This Court is clearly bound by the judgment of the Court of Appeal. Applying the reasoning of that judgment, It appears to this Court that the correct respondent for the purposes of the claims under the 1997 Act (only) is the Minister. The correct respondent for the purposes of the 1994 Act is the Board.

Complaint under the 1997 Act

The Complainant was involved in an accident on 3 January 2015 following which she was on long-term absence from her employment. The School is obliged to operate a sick pay scheme determined by the Minister and detailed in Circular 0054/2015. The Complainant submits that she was not paid for three public holidays in 2016: New Year’s Day; St. Patrick’s Day; and Easter Monday. Her claimed economic loss is €143.11. The Complainant’s solicitor requested the Court to make an order of compensation against the Minister for the Department’s failure to pay the Complainant her entitlements in respect of the public holidays when they fell due.

The Department submits that the Complainant was paid the Temporary Rehabilitation rate in respect of New Year’s Day 2016. They also submit that on the date of her early retirement she will receive payment in lieu for public holidays and annual leave that accrued during her period of sick leave.

On an examination of the Adjudication Officer’s written decision, it appears to the Court that the claim in respect of public holidays before him related only to 1 January 2016. The fact that this is the only public holiday expressly addressed in the submission made on behalf of the Minister, confirms the Court in its view that the references to St. Patrick’s Day and Easter Monday 2016 in the submission it received on the appeal were made in error.

The Court is satisfied that the Department’s sick pay scheme was operated correctly in the Complainant’s case. The Court does not accept that any non-compliance with the provisions of the 1997 Act in respect of the Complainant’s entitlements under the Act to public holiday benefits has been made out.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
7th July 2017______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.