ADJ-00002702

Complainant

Respondent

Anonymised Parties

A Principal

A Government Department

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00003669-001

05/04/2016

Complaint    seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00003669-002

05/04/2016

Complaint    seeking adjudication by the Workplace Relations Commission under section 13    of the Industrial Relations Act, 1969

CA-00003669-003

05/04/2016

Closed May 9, 2016

The complainant is a Primary School Principal who has named two respondents in a   three item claim relating to his terms of employment as an Administrative   Principal in 2009. For the purposes of this claim the respondent is a Public Service, which has denied both respondent status and any resulting liability for the claims.   This case was heard conjoined with ADJ 3507 which named the Board of   Management as the second Respondent.

The complainant commenced work as a Teacher in a Primary   School on 1 September 2003.He acted as Principal for 5 years and became Administrative   Principal in 2009. In 2008, the School took on the pupils from a neighbouring   school, which closed without extra supports.

The complainant submitted that during the 2011/2012 school   year, he was advised by his Union that the school would lose 1 teacher as   result of not having enough resource hours to maintain the 11 th teacher. The   role of Administrative Principal was to be maintained regardless. A number of   weeks later, the respondent confirmed   that the school was to lose

1. Resource   Teacher
2. Teacher   replacing the Administrative Principal

And Consequently

3. Administrative   Principal Status

In May 2012, the Union told the complainant that a   Representative from the respondent was to call with good news. The   complainant gave direct evidence that this was anticipated to be an important   call and the Deputy Principal and another teacher were in attendance in the room when the phone was placed on speaker when Ms APO   (Assistant Principal Officer) called on May 8, 2012.

The complainant submitted that he had been unconditionally   promised that he would retain the Administrative Principal ship for as long   as he was the post holder at the Primary School at the centre of the case. This   was to be the case regardless of pupil numbers, staff numbers, existing rules   or circulars. The complainant submitted a written record of the course of the   telephone call.

The complainant told the hearing that he retained this   arrangement over the course of academic years 2012, 2013 and 2014 until the   respondent withdrew the Administrative Principal ship in September 2015 .This   resulted in a loss of

1. 165   days per annum of administrative time.
2. Supplemental   Teacher resulting from the school having lost an Administrative Principal   title.

The complainant submitted that efforts to overturn the   decision had failed and the Respondent issued the final word on the   withdrawal of the Administrative Principal in November 2015.He contended that   Ms APOs’ assurances regarding the retention of he position had at least   ostensible authority to bind the Respondent .

1 Complaint Under   Terms of Employment ( Information) Act, 1994

The complainant submitted that his appointment as   Administrative Principal arose by an oral communication .He added that he was   subsequently informed that he would always retain that status whilst   Principal of the named school .He had not been issued with any written   confirmation of the change in his terms and conditions of employment, while   the changes were manifested in him being permitted to hire an additional   teacher and for him to cease full time teaching in favour of administrative   duties .He sought the retention of the title of Administrative Principal as   redress in the case .

2 Complaint   under Organisation of Working Time Act   , 1997

The complainant submitted that he now worked in excess of   60 hours a week as a consequence of the withdrawal of the Administrative   Principal status .This consisted of   5-7 hours contact time in class, inclusive of preparation and supervision and   the time necessary for administration of the school.

3 Dispute Under   Industrial Relations Act , 1969

The complainant submitted that he had been treated   unfairly by the respondent in relation to the withdrawal of the   Administrative Principal set against an assurance of a tenure in the role .He   contended that there had been a significant breach of trust between the   respondent and him, causing him to fear constructive dismissal, difficulty   seeking re-employment at Principal level, given that the respondent has a   virtual monopoly of the kind of employment for which he was best qualified.

The Hearing of 12 October, 2016 was adjourned to allow for   a direct engagement, which was unsuccessful in reaching a resolution .The   complainant sought a decision in the case and made the following   supplementary submission at the hearing on 4 April 2017 and by way of a   supplementary submission dated 11 April, 2017.

1 The complainant had not based his complaint under the   Industrial Relations Act, 1969 as he understood that he was excluded from the   definition of a “worker” for the purposes of pre 1990 Industrial Relations legislation.   He submitted that his complaint be dealt with as a matter of contract law.

2 The complainant submitted the current duties attached to   his position and submitted the distinction between the role of Teaching Principal   and Administrative Principal.

3 The complainant made further submissions on the   respondent being the correct respondent in the case relying on the High Court   case of Dept. of Education and Skills V Ann Boyle, which had stated that the case of Boyle was rooted   in the “unique Constitutional arrangements for Education in this state   involving a tri partite relationship between the Respondent and the   respondent funded teacher and school”.

4 The Complainant recalled the circumstances surrounding   the phone call received from Ms APO on 8 May , 2012 and clarified that the document submitted in   evidence of the call was “ an accumulation of notes “ and not a taped   recording.

5 The complainant made a final submission to seek the   retention of the Administrative Principal for the school in the best interest   of the school population. He made extensive submissions on this point.

The respondent submitted that it is not the employer and contended that it was not an appropriate   respondent in respect of the claims lodged. The respondent had objected to   the referral under the Industrial Relations Act 1969, on 27 April, 2016.

The respondent explained that they operated a payroll   service of teachers and principals on behalf of Boards of Management and have   statutory function in the setting of terms and conditions for school principals,   the respondent is not the employer for the purposes of either :

1 Terms of Employment( Information ) Act, 1994

2 Organisation of Working Time Act 1997

As per the definition of “ employer “ in both of the Acts   :

“Employer “in   relation to an employee, means the person with whom the employee has entered   into and for whom the employee works under a contract of employment.

The Respondent drew the attention of the hearing to   Section 24 of the Education Acts, 1998   to 2012 and submitted that a Board of Management manages the school on   behalf of the patron.

Section 24(1)

Subject to this section,   the board of a recognised school –

(a)     Shall, if not already appointed. appoint a   person to be Principal of the school and

(b)     May appoint such and so many persons as   teachers and other staff of the school as the board from time to time   considers necessary for the performance of powers and functions under this   Act.

Section 24 (2) The   numbers and qualifications of the teachers and other staff of a recognised   school , who are , or who are to be remunerated out of monies provided by the   Oireachtas ,shall be determined from time to time by the Minister , with the   concurrence of DPER.

……………

The Respondent submitted some background to the case. In Ireland,   the distribution of the population has necessitated a relatively large number   of small primary schools. In schools with less than 177 pupils, management   and administrative duties for Principals are expected to be undertaken in   addition to their full time teaching duties.

Teaching Principals in these smaller schools are provided   with release time in order to assist Principals in fulfilling their principal   duties .The School in this case is regarded as a P+4 schools where the   Principal is permitted 20 release Administrative days in the current school year.

This is distinct from the role of an Administrative (Walking)   Principal, which is appointed to larger schools with in excess of 177 pupils.   With effect from the academic year 2012/2013, the criteria for the   appointment of Administrative Principals were based on pupil numbers The   staffing schedule is undertaken on an annual basis and supported by a Circular.

The School at the centre of the case had a Roll Call of   164 pupils in 2009 which has since fallen to134 in 2015 and 131 in the academic year of 2016 .The   school was permitted to retain the Administrative Principal status, which it   held from 2008 to 2011 as an exception   measure for the academic years

2012, 2013 and 2014.

The role of Administrative Principal and the associated   teaching position was withdrawn for the academic year 2015.

The respondent outlined that 54 primary schools held   Administrative status under “ the historical rule” in 2012 .Six have since   amalgamated .20 continue to retain the status under the historical rule .26   schools have lost the status and 2 have acquired Administrative status under   he revised 2012 rules. The respondent   submitted that there was sufficient provision for the Administrative function   to be absorbed by the existing cohort of existing teachers and Deputy Principal.

The Respondent quoted from the “ Historic Rule “ necessary   to retain an Administrative Principal

Principal Teachers   in schools with an enrolment of fewer than 178 pupils but with a staffing of   Principal plus nine or more teachers , when all ex quota posts are counted ,   may be appointed as Administrative Principals

The respondent cited extensive case law in support the   contention that the complainant was properly employed by the Board of   Management of the School and not by the respondent .The respondent is not   party to the contract. The respondent contended that the Board of Management   was responsible for recruitment, selection, appointment, discipline and   dismissal of staff and was not an agent of the Minister.

Irish Supreme Court O   Keeffe V Hickey , [2009] 2 302   where Hardiman J examined the relationship between the Respondent and a   teacher and refuted an employment relationship between the Minister and the   teacher .

Irish Supreme Court,   Crowley V Ireland Kenny J held   that teachers were not employed by the State.

Tobin V Cashel in   the case of a challenge to a dismissal   of a former teacher , where the Irish High Court was satisfied that the “   Applicant was employed by the Chairman and Secretary of the board of   Management ,who purported to dismiss him “

Mc Sherry V Board   of Management of Scoil Chriost Ri

Josephine Bleach V   Board of Management of Our Lady of Immaculate Senior School And DES ( Dec –E2003/028)

1           Complaint   Under Terms of Employment( Information ) Act, 1994

The respondent disputed any breach under the Act. The   criteria for the allocation of posts are communicated to school management   annually and are made available on the respondent website A letter issued   from the Respondent to the Chairperson of the School Board of Management on   21 February 2013, outlining the Respondent’s intention to suppress the Administrative   Principal post at the school, which was varied as an exceptional measure for   2013 and 2014 school years. As the School could not meet the “historic rule”   criteria and the pupil enrolment continued to drop, the position was   withdrawn in 2015. The previous Chair of the Board of Management signed the   redeployment forms in respect of two teachers and submitted same to the Department.   This operationalised the decision .

2           Complaint   Under Organisation of Working Time Act   ,1997

The respondent disputed any breach of the Act. The   respondent submitted that the school was not entitled to retain the position   of Administrative Principal. The School has its approved complement of   Teachers and there is provision within that number to assist the   administrative process to avoid the complainant working a 60 hour week.

The respondent submitted a supplementary submission on 9   November 2016, seeking that the case   go to decision as the enrolment stood at 121 as at 30 September 2016 and the   “ concession of Administrative Principal “ as a result of the nearby school   closure is no longer warranted .

The respondent   attended the reconvened hearing on April 4, 2017 and agreed to review the recent case of The Minister for Education   and Skills V Anne Boyle [2017] IECA 39

On 13 April 2017, the Respondent made a final submission :  

1 In the case of   Minister for Education V Anne Boyle [2017]   IECA 39,.the respondent confirmed that an appeal was being pursued at the   Supreme Court

2           The transcript of May 8, 2012 conversation   resembled a taped version rather than a written record.

3           The School satisfied the criteria for   Administrative Principal in 2009 when it received 29 pupils and additional   teachers when the school closed. This criteria changed in School year 2012   and the Complainant was permitted to retain the title of Administrative   Principal for a further 2 years when the enrolment decreased in 2013.

There are currently 400 schools with enrolment greater   than the complainant’s school but less than the 177 pupil ceiling required   for Administrative Principal status. The Respondent contended that the   Staffing schedule adopted on an annual basis was equitable and the   complainant could not properly be classified as an Administrative Principal   based on the current or short term projected pupil head count as that would   be inequitable.

The Respondent outlined that significant local interest   had arisen from Political Representatives in respect of the post but the   criteria were applied justly in accordance with the circular.

I have given the parties the opportunity to be heard in   this case and to present any evidence in support of the positions adopted.

There is a Preliminary Issue to be decided in this case ,   that is :

Whether the Respondent is properly identified as the   employer in the case of the two complaints, given that the complaint under   the Industrial Relations case closed in May 2016?

Preliminary Issue :

The complainant has submitted that the Respondent should   be recognised as his employer for the purposes of the Act. The respondent   disputed this relying on extensive case law is support of the stated position.

I began by considering both submissions, both oral and written.   It did not help matters that the complainant was not in possession of any   type of contract of employment.

On the second day of hearing, the complainant produced a “Form   of Agreement” signed on 1 November2016 on behalf of the School .This named   the National School and detailed 6 components of a Memorandum of Agreement   .This document read to me as a type of enabling document but it did not   comply with the requirements of Section 3 of the Act and as such I could not   establish that it was determinative of an employment relationship.

I considered the submissions of the respondent on seeking   that the Board of Management be properly recognised as the employer in this   case .I began to have reservations on this submission when I considered the   major role played by the Respondent in the evolution of the case before me.

I accept that an amalgamation of two Primary Schools led   to the genesis of the Administrative Principal in 2008/9. I found that this   merger was overseen and operationalised by the Respondent.

The Respondent, in my opinion maintained a high profile   throughout the next number of years when the population of the school fell.   All actions on supply of teachers were presided over by the Respondent, by   way of Administrative Circulars with the school management appearing in a   supporting role.

I appreciate that the system of formalising the criteria   for supply of teacher numbers / Scope of Principals changed via   Administrative Circular in the academic year 2012 and I found a subsequent   lack of clarity in any official transitory arrangements specific to the complainant   .

Instead I found   that the school was permitted by the Respondent to maintain the   Administrative Principal position until September 2015. This confirmed to me   that the Respondent was really the main player in terms of the Administrative   allocation of Teachers and Principal. I found no evidence that the School had   an identifiable foothold on this.

This brought me to explore the parameters of the   definition of employee under the Legislation. Section 1 of the act defines

“ employee” means a person who has entered into or works under (or,   where the employment has ceased, entered into or worked under) a contract of   employment and references, in relation to an employer, to an employee shall   be construed as references to an employee employed by that employer; and for   the purposes of this Act, a person holding office under, or in the service   of, the State (including a member of the Garda Síochána or the Defence   Forces) or otherwise as a civil servant, within the meaning of the Civil   Service Regulation Act , 1956 shall be deemed to be an employee employed   by the State or Government, as the case may be, and an officer or servant of   a local authority for the purposes of the Local Government Act , 2001 (as amended by the Local Government Reform Act 2014)   , a harbour authority, a health board or an education and   training board shall be deemed to be an employee employed by the   authority or board   as the case may be;

“ employer”,   in relation to an employee, means the person with whom the employee has   entered into or for whom the employee works under (or, where the employment   has ceased, entered into or worked under) a contract of employment subject to   the qualification that the person who under a contract of employment referred   to in paragraph (b) of the   definition of “ contract of employment”   is liable to pay the wages of the individual concerned in respect of the work   or service concerned shall be deemed to be the individual’s employer;

I found that the complainant could be recognised as a potential   employee of both the school and the respondent from an initial reading of the   Act.

I then considered the cases of Hickey and Crowley as   advanced by the Respondent and noted that they referred to vicarious   liability in Tort.

I considered recent case law in Dooley v Catholic University School [2010] IEHC 496 and. Blackrock College V   Mary Browne [2013] IEHC 607 where the definition of a part time employee   was considered in the course of a cause of action under that Legislation.

I found that Hogan   J held in Boyle   that Section 1(2) to Section 1(7) of the Protection of Employees (Part time)   Legislation is to be construed as one with several different items of   employment legislation such as the instant Act.

In Boyle, the Court   of Appeal held that Ms Boyle had two employers, the Respondent on implied   terms and the school for express terms. It is of note that 98% of Ms Boyle’s   salary was paid to the school management committee rather than to her   directly as her school was not a recognised school under the 1965 rules for   National Schools.

Both parties in the instant case confirmed that the school   was a recognised National School and this is reflected in the “November 2016”   Agreement with the school .This causes the facts to differ somewhat to Boyle.

I also considered the parameters of   the definition of a Public Servant in FINANCIAL   EMERGENCY MEASURES IN THE PUBLIC INTEREST (NO. 2) ACT 2009 and found that the complainant could be   safely recognised as a Public Servant, which suggests at least a differential   from an employee of a Board Of Management.

I then consulted Section 24(3) of the Education Act , 1998   and noted that it provides that the   terms and conditions of employment of teachers paid by monies provided by the   Oireachtas

“ shall be   determined from time to time by the Minister for Education and the Minister   for Public Expenditure and Reform”

. Section 24(6) of   the Act provides that

“ where all or part   of the remuneration or superannuation or both of the Principal……is paid out   of monies provided by the Oireachtas , such remuneration and superannuation   shall be determined from time to time by the Minister and Minister for Public   Expenditure and Reform .”

I have also considered the EAT case of Blackbyrne V Thomas Pringle and Houses of   the Oireachtas [2014] 25 ELR 153,where the Oireachtas was released as a   second respondent where the first respondent retired from Office. The   Tribunal concluded that in order to fix employer status on the second   respondent,the complainant would have to establish an intention in that   regard . In the instant case , I found that the Respondent engineered the   prime events and communiques which   evolved in the case ,starting with the amalgamation of the schools, followed   by the preservation of the Administrative Principal as a parallel entity   2012-2015 and concluding with the contested withdrawal of the position in   September 2015.

Therefore I Conclude that

In accordance with Boyle   , I must find that the complainant   has the “ unsatisfactory “ title of two employers “ uniquely split”

For the purposes of remuneration and setting terms and   conditions of employment: I have identified The Respondent as the correct respondent.

For the purposes of hiring, discipline, dismissal and   general day to day running of the school: I have identified The Board of   Management of the School as the correct respondent.

Therefore, I find that on this Preliminary Point, The   Respondent is identifiable as a correct respondent in the claim.

Terms of Employment         Excess Hours worked