TED1715

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-00002099 also dated 8 March 2017. Substantially the same matters are complained of in both sets of proceedings. However, the Respondent in the latter appeal is named as the Minister for Education and Skills (“the Minister”). 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 agreed early retirement from her employment. That claim was, accordingly, formally withdrawn at the hearing.

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 1994 Act

The Complainant submits that the statement that she received in purported compliance with the 1994 Act is deficient in a number of respects as it does not specify who the Complainant’s employer is. Nor does it specify a pay reference period for the purposes of the National Minimum Wage Act 2000. Finally, it is not signed by or on behalf of the Complainant’s employer, as is required under the Act.

Through her solicitor, the Complainant requests the Court to “re-write the contract to be compliant with the Act or [provide] compensation which would be persuasive of the employer going forward making sure that an appropriate document is provided.” He solicitor emphasised to the Court, more than once, that the alleged breaches of the 1994 Act “are not minor. They are extremely serious and important issues and need to be addressed.”

The Complainant accepts that she received a comprehensive 11-page document on the date she commenced employment with the Respondent i.e. 20 February 1995. A copy of this document bearing the Complainant’s signature was submitted to the Court. It is entitled: ‘Child Care Assistants Employed in Special Schools: Conditions of Service’. When asked what detriment, if any, the Complainant suffered as a consequence of these breaches of the 1994 Act, her solicitor informed the Court that his client had suffered a detriment arising from the difficulty she experienced in trying to identify who her employer was for the purposes of the within proceedings. As a consequence of that difficulty she was forced to incur the cost of engaging a legal professional to take the proceedings on her behalf.

The Court has examined in some detail the 11-page document referred to in the preceding paragraph. The Court is of the view that this document is in the form a general statement of generic duties and terms and conditions that apply to a large category of similar workers and is not in the form of an individual statement of terms and conditions tailored to the Complainant’s particular circumstances as envisaged by the 1994 Act. The Court, therefore, awards the Complainant compensation of 2 weeks’ pay. In the case of the Complainant, this amounts to€1,431.16.

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.