ADJ-00003507

ADJUDICATION OFFICER DECISION and RECOMMENDATION

Adjudication Reference: ADJ-00003507

Parties:

	Complainant	Respondent
Anonymised Parties	A Principal	A Primary School

Complaints:

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-00005023-001	03/06/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00005023-002	03/06/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00005023-003	03/06/2016

Date of Adjudication Hearing: 12 October and 4 April, 2017

This case is linked with ADJ 2702

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 27 of The Organisation Of Working Time Act, 1997, Section 7 of the Terms of Employment (Information) Act, 1994 an Section 13 of the Industrial Relations Act, 1969, following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute.

Background:

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 School Board of Management, which has denied both respondent status and any resulting liability for the claims.

Summary of Complainant’s Case:

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 First named Respondent confirmed that the school was to lose

Resource Teacher
Teacher replacing the Administrative Principal

And Consequently

Administrative Principal Status

In May 2012, the Union told the complainant that a Representative from the First named respondent was to call with good news. The complainant gave direct evidence that this was anticipated to be an important call and the then Deputy Principal ( Ms DP) and a fellow Teacher , Mr T were in attendance in the room and 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 on the call 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 2013 and 2014 the Administrative Principal ship was withdrawn in September 2015 .This resulted in a loss of

165 days per annum of administrative time.
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 First named Respondent issued the final word on the withdrawal of the Administrative Principal in November 2015.The complainant submitted that the respondent, the School Board of Management has no authority over what transpired and the first named Respondent was liable for the claims.

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 .

The respondent issued him with a Form of Agreement on 1 November, 2016, which referred to his tenure as Principal at the school from 24 February, 2009.

2 Complaint under Organisation of Working Time Act , 1997

The complainant submitted that he now worked in excess of 60 hours a week .This consisted of 5-7 hours contact time in class, inclusive of preparation and supervision and the time necessary for administration of the school. He submitted that this was a breach of Section 15 of the Act .

3 Dispute Under Industrial Relations Act , 1969

The complainant submitted that he had been treated unfairly by the First named 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 second named 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.

Adjournment :

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 3 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 First named respondent being the correct respondent in the case relying on the High Court case of Dept. of Education and Skills V Ann Boyle, where O Malley J. 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.

Summary of Respondent’s Case:

The Respondent submitted that the Complainant was held in high regard by the respondent and registered the support of the Board in the complaint against the first named respondent.

The respondent confirmed that that the Board of Management accepted employer status for “hiring and firing “pursuant to Section 24(3) of The Education Act, 1998, the Board did not determine the terms and conditions of employment of the Principal or any other teachers, whose salaries are paid by the first named Respondent and had no further role in the matter.

The respondent contended that the Board was not in a position to issue appropriate written terms of employment pursuant to the changes asserted by the complainant, without appropriate notification or sanction from the first named Respondent and further contended that any technical failure in this regard is one in respect of which the Board ought to be indemnified fully by the first named respondent.

The respondent agreed to use a period of adjournment to take an opportunity to explore a resolution of the claims with the first named respondent in ADJ 2702. The respondent subsequently wrote to the WRC and indicated that progress had not proved possible and sought a Decision in the case ,

The respondent attended the resumed hearing on 4 April, 2017 and informed the hearing that the Board of Management had issued a Form of Agreement to the Complainant, which both parties signed on November 1, 2016. This included a confirmation of :

1 That the Complainant was Principal of the school from 24 February, 2009.

2 Three months notice in writing by either party.

3 The School had the power to determine misconduct.

4 Duties and Salary of the Teacher are in accordance with the Rules for the National School.

The Respondent repeated the submission that the Board of management could not be expected to answer the claims as employer.

In response to the presentation of Minister of Education and Skills V Anne Boyle [2017] IECA 39 by the Adjudicator, the respondent agreed to consider the case and make any further submissions as needed. A Supplementary submission was subsequently received dated April 5, 2017.

The respondent contended that Section 24(5) of the Education Act 1998 as substituted by Section 6 of the Education Amendment Act, 2012 provided that the terms and conditions of teachers appointed by a Board of Management, paid by monies from the Oireachtas shall be determined by the Minister for Education. In particular , the respondent relied on para 73 of Boyle,where it was asserted that the first named respondent maintained control over the fixing of the terms and conditions in addition to determination of salary .

The respondent was at one with Boyle on the tri-partite nature of the complainant’s employment between the first and second named respondent in ADJ 2702 and ADJ 3705.

The respondent submitted that the Board of Management at no time had the power to award the complainant the position of Administrative Principal, or to remove him from such a position. The respondent also submitted that the Board could not be held liable for the excess hours now worked by the complainant . These matters were always in the sole control of the first named respondent in ADJ 2702.

The respondent sought that the first named respondent should be considered the mark for any award the Adjudicator saw fit to make.

Findings and Conclusions: Preliminary Issue

I have given consideration to the case made by the parties at the conjoined hearing with ADJ 2702. I noted the dove tailed approach taken by the complainant and the respondent in this case .Both parties presented on a very similar platform in opposition to the first named respondent.

I have addressed the Preliminary point of the identification of the employer for the purpose of this claim in my earlier decision above. I found that in following the findings of the Court of Appeal in Boyle that the complainant held the “ unsatisfactory “ title of two employers “ uniquely split “

For the purposes of remuneration and setting terms and conditions of employment: I have identified The First named 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 (the current respondent) as the correct respondent.

I will now consider the complaints and Dispute as presented

1 CA-00005023-001 Hours of Work

The complainant lodged his claim on 3 June 2016.The reference period for the complaint was September 2015. Section 41(6) of the Workplace Relations Act 2015 requires me to confine my evaluation of the claims to a period within six months of the date of contravention or by application of Section 41(8) to a period of 12 months on grounds of reasonable cause.

This means that the cognisable period for the claim is 3 December 2015 onwards or 4 June 2015 on reasonable cause. I have decided that the respondent is the correct employer for the purposes of this claim.

Consistent with ADJ 2702 I believe that it is fair for me to grant the extension of time on reasonable grounds on the basis of the issue being live at the school and outside Agencies until November 2015 and on the grounds that the complainant presented as a Lay Litigant.

I have therefore considered the period from June 4 2015 to the date of claim.

Section 15 of the Organisation of Working Time Act , 1997 outlines

Weekly working hours.

— (1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “ reference period ”) that does not exceed—

( a) 4 months, or

( b) 6 months—

(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or

(ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,

( c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.

The complainant contended that he worked in excess of a 60 hour week from September 2015 and he submitted a print out which pointed to a stated approximation of 60 hour week in September 2016 inclusive of teaching and Administrative time . This is the only evidence submitted for my consideration as the respondent did not present any record of time worked , but did not dispute the complainants submission . I find there is insufficient evidence before me associated with the time limits allowed for the complaint, June 2015 to June 2016 to substantiate this complaint and I find that the complaint is not well founded.

2 CA-00005023-002 Terms and Conditions of Employment

I have already decided that the First named Respondent in ADJ 2702 is the correct respondent for the purposes of this Act.

I find the complaint to be not well founded.

3 CA-00005023-003 Industrial Relations Issues

Both parties accepted that the complainant was excluded from the definition of worker for the purposes of the pre 1990 Industrial Relations Legislation. I found that he complainant lacked locus standi to advance the claim given his exclusion from the definition of “ worker “

By Section 23(1) of the Industrial Relations Acts 1990.

“Worker”.

— (1) In the Industrial Relations Acts, 1946 to 1976, and this Part, “ worker” means any person aged 15 years or more who has entered into or works under (or, where the employment has ceased, worked under) ] a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour including, in particular, a psychiatric nurse employed by a health board and any person designated for the time being under subsection (3) but does not include—

( a) a person who is employed by or under the State,

( b) a teacher in a secondary school,

( c) a teacher in a national school,

( ca ) a teacher employed by an education and training board,

…….

I find that I lack the jurisdiction to investigate the dispute.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint and dispute in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 27 of the Organisation of Working Time Act, 1997 requires me to make a decision in the case. Section 7 of the Terms of Employment (Information) Act, 1994 requires me to make a decision.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

CA-0005023-001: I found that this complaint was not well founded.

CA-00005023-002: I found that the Respondent was the incorrect employer to address this claim. Reference ADJ 2702. I found the complaint was not well founded.

CA-00005023-003: I found that the complainant did not have standing to pursue this claim and I lacked the jurisdiction to hear the claim.

Dated: 15 June 2017

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Key Words:

Terms Of Employment Excess Hours