Worker

Employer

Anonymised Parties

A Special Needs Assistant

A Primary School

Representatives

William Cahir & Co Solicitors

Michael Houlihan & Partners Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00008917-001

22/12/2016

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

CA-00008917-002

22/12/2016

CA-00008917-001 - The claim under the Redundancy Payments Act, 1967 was withdrawn.

CA-00008917-002- The worker commenced employment as a Special Needs Assistant (SNA) in 1999 and moved to a school-assigned contract from a child-assigned contract in September 2005. There is one other SNA in the school who joined around 2006/2007.

In February 2016 the National Council for Special Education (NCSE) reviewed the school’s provision of SNAs and in July 2016 advised by letter that “the allocation of 1.25 SNAs is to be deployed as 0.75 post and a 0.5 post". This is to reflect the fact that one student, who requires a high level of support, is only present in the school for three days each week. As a result of the reduction in the needs of this student, the worker’s hours were reduced from 32 hours per week to 24 hours per week. The worker raised a number of disputes in relation to this.

The worker’s disputes centred around the reduction in her hours from 32 to 24 hours per week and specifically her dispute was that:

1. the school should have prioritised retaining her hours over the hours of another SNA owing to LIFO as per circular 0059/2006;
2. the school could have appealed the decision of NCSE but did not;
3. the school changed her contract in September 2016;
4. the worker required assurances that increases in SNA hours will be allocated to her in the future on the basis of her seniority.

The employer advised they had no choice in the allocation of hours to SNAs and that this decision comes from the NCSE in respect of teaching support and special needs assistant allocation for each year. Where NCSE do not issue a decision then LIFO, as per circular 0059/2006 would apply. In answer to the worker’s specific disputes they maintained that:

In relation to the first part of her dispute, the NCSE’s correspondence was very specific in terms of the hours available, namely that the SNA post amounted to a 1.25 post with a further direction that it be allocated at 0.75 and 0.5 post, therefore LIFO did not apply. While it was accepted that the worker had greater length of service than the other SNA, LIFO does not apply where NCSE reduces the school’s allocation of SNA’s and specifies the division of the hours, as it did in this case.

In relation to the second part of her dispute as to why the school did not appeal the decision regarding the allocation of hours; the school maintained that they had no grounds to appeal the decision. Owing to NCSE allocating support for the child based on the days that the child was in attendance (3 days) which was factual, they could not dispute this decision and it was also noted that it had no negative impact on the child.

In relation to the third part of her dispute regarding the change in her contract; the employer put forward that the worker’s contract was changed to reflect the change in the hours for 2016-2017.

With regard to her fourth part of her dispute regarding a requirement that her seniority be recognised for future allocation of hours; the employer advised that no reassurance could be given to the worker re future allocation of hours as it is a decision determined by the NCSE, albeit they recognised her seniority.

The employer also referenced that Labour Court AD1082, involving St Sylvester’s Infant School v a Worker, was very similar to the instant case and in that case the Court issued a recommendation against the worker.

Having considered the submissions of both sides and taking into consideration that a similar case came before the Labour Court following the appeal of a Rights Commission Hearing, under AD1082, in addition to taking into consideration that the requirement for SNAs is determined annually by the NCSE (on the basis of the review carried out by a SENO); I recommend as follows:

In relation to the first part of the worker’s dispute, namely that she felt the school should have prioritised retaining her hours over the hours of another SNA owing to LIFO; I find that it is incumbent on the Principal of the School, to carry out the decision of the NCSE.   It is noted that the NCSE’s correspondence is very specific in terms of the hours available for the two SNAs and that the school is bound by this decision. This was referenced in AD1082 whereby the Labour Court found that “it was not necessary to apply the seniority factor as the Principal was given authority for six posts…and implemented the decision accordingly”. On that basis, this part of the worker’s dispute fails as the employer was required to comply with the decision of the NCSE.

With regard to the second part of her dispute, that the school could have appealed the decision but did not; while I can understand why the worker might have wished the employer to appeal the decision, I accept their reason that there were no grounds for the appeal as the NCSE allocated support for the child based on the days that the child was in attendance (3 days), which was not disputed by the worker and had no negative impact on the child, therefore, this part of her dispute also fails.

With regard to the third part of her dispute in relation to the addendum to the contract in September 2016, I have noted the reason why this was changed in terms of reflecting the workers change in hours. However, to avoid ambiguity in the future, I would recommend that the first paragraph of the addendum to her contract, should reference the specific year to which such changes e.g. changes in hours as in this instant case, may apply.

With regard to the fourth part of her dispute, whereby the worker wanted assurances that increases in SNA hours will be allocated to her in the future on a first-come first serve basis, I note that this is currently dependant on the NCSE. Therefore, while I take note that the employer recognises her seniority, such a decision is dependent on the relevant body at the time and therefore this part of her claim cannot succeed.

CA-00008917-001

The claim under the Redundancy Payments Act, 1967 was withdrawn.

CA-00008917-002

My recommendation, is as follows:

1. In relation to the first part of her dispute that the school should have prioritised retaining her hours over the hours of another SNA owing to LIFO, I find that it is incumbent on the Principal of the School, to carry out the decision of the NCSE. On that basis, this part of the worker’s dispute fails as the employer was required to comply with the decision of the NCSE.

2. With regard to the second part of her dispute that the school could have appealed the decision but did not; I find that there were no grounds for appeal and therefore, this part of her dispute also fails.

3. With regard to the third part of her dispute, in relation to the addendum to the contract in September 2016; I recommend that to avoid any ambiguity, the first paragraph of the addendum to her contract, should reference the specific year to which such changes e.g. changes in hours, as in this instant case, may apply.

4. With regard to the fourth part of her dispute, that she wanted assurances that increases in SNA hours will be allocated to her in the future on a first-come first serve basis, I note that this is currently dependant on the NCSE.   Therefore this part of her claim cannot succeed.

SNA, Industrial Relations Act, reduction in hours

Worker

Employer

Anonymised Parties

A Special Needs Assistant

A Primary School

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00008917-001

22/12/2016

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

CA-00008917-002

22/12/2016

CA-00008917-001 - The claim under the Redundancy Payments Act, 1967 was withdrawn.

CA-00008917-002- The worker commenced employment as a Special Needs Assistant (SNA) in 1999 and moved to a school-assigned contract from a child-assigned contract in September 2005. There is one other SNA in the school who joined around 2006/2007.

In February 2016 the National Council for Special Education (NCSE) reviewed the school’s provision of SNAs and in July 2016 advised by letter that “the allocation of 1.25 SNAs is to be deployed as 0.75 post and a 0.5 post". This is to reflect the fact that one student, who requires a high level of support, is only present in the school for three days each week. As a result of the reduction in the needs of this student, the worker’s hours were reduced from 32 hours per week to 24 hours per week. The worker raised a number of disputes in relation to this.

The worker’s disputes centred around the reduction in her hours from 32 to 24 hours per week and specifically her dispute was that:

1. the school should have prioritised retaining her hours over the hours of another SNA owing to LIFO as per circular 0059/2006;
2. the school could have appealed the decision of NCSE but did not;
3. the school changed her contract in September 2016;
4. the worker required assurances that increases in SNA hours will be allocated to her in the future on the basis of her seniority.

The employer advised they had no choice in the allocation of hours to SNAs and that this decision comes from the NCSE in respect of teaching support and special needs assistant allocation for each year. Where NCSE do not issue a decision then LIFO, as per circular 0059/2006 would apply. In answer to the worker’s specific disputes they maintained that:

In relation to the first part of her dispute, the NCSE’s correspondence was very specific in terms of the hours available, namely that the SNA post amounted to a 1.25 post with a further direction that it be allocated at 0.75 and 0.5 post, therefore LIFO did not apply. While it was accepted that the worker had greater length of service than the other SNA, LIFO does not apply where NCSE reduces the school’s allocation of SNA’s and specifies the division of the hours, as it did in this case.

In relation to the second part of her dispute as to why the school did not appeal the decision regarding the allocation of hours; the school maintained that they had no grounds to appeal the decision. Owing to NCSE allocating support for the child based on the days that the child was in attendance (3 days) which was factual, they could not dispute this decision and it was also noted that it had no negative impact on the child.

In relation to the third part of her dispute regarding the change in her contract; the employer put forward that the worker’s contract was changed to reflect the change in the hours for 2016-2017.

With regard to her fourth part of her dispute regarding a requirement that her seniority be recognised for future allocation of hours; the employer advised that no reassurance could be given to the worker re future allocation of hours as it is a decision determined by the NCSE, albeit they recognised her seniority.

The employer also referenced that Labour Court AD1082, involving St Sylvester’s Infant School v a Worker, was very similar to the instant case and in that case the Court issued a recommendation against the worker.

Having considered the submissions of both sides and taking into consideration that a similar case came before the Labour Court following the appeal of a Rights Commission Hearing, under AD1082, in addition to taking into consideration that the requirement for SNAs is determined annually by the NCSE (on the basis of the review carried out by a SENO); I recommend as follows:

In relation to the first part of the worker’s dispute, namely that she felt the school should have prioritised retaining her hours over the hours of another SNA owing to LIFO; I find that it is incumbent on the Principal of the School, to carry out the decision of the NCSE. It is noted that the NCSE’s correspondence is very specific in terms of the hours available for the two SNAs and that the school is bound by this decision. This was referenced in AD1082 whereby the Labour Court found that “it was not necessary to apply the seniority factor as the Principal was given authority for six posts…and implemented the decision accordingly”. On that basis, this part of the worker’s dispute fails as the employer was required to comply with the decision of the NCSE.

With regard to the second part of her dispute, that the school could have appealed the decision but did not; while I can understand why the worker might have wished the employer to appeal the decision, I accept their reason that there were no grounds for the appeal as the NCSE allocated support for the child based on the days that the child was in attendance (3 days), which was not disputed by the worker and had no negative impact on the child, therefore, this part of her dispute also fails.

With regard to the third part of her dispute in relation to the addendum to the contract in September 2016, I have noted the reason why this was changed in terms of reflecting the workers change in hours. However, to avoid ambiguity in the future, I would recommend that the first paragraph of the addendum to her contract, should reference the specific year to which such changes e.g. changes in hours as in this instant case, may apply.

With regard to the fourth part of her dispute, whereby the worker wanted assurances that increases in SNA hours will be allocated to her in the future on a first-come first serve basis, I note that this is currently dependant on the NCSE. Therefore, while I take note that the employer recognises her seniority, such a decision is dependent on the relevant body at the time and therefore this part of her claim cannot succeed.

CA-00008917-001

The claim under the Redundancy Payments Act, 1967 was withdrawn.

CA-00008917-002

My recommendation, is as follows:

1. In relation to the first part of her dispute that the school should have prioritised retaining her hours over the hours of another SNA owing to LIFO, I find that it is incumbent on the Principal of the School, to carry out the decision of the NCSE. On that basis, this part of the worker’s dispute fails as the employer was required to comply with the decision of the NCSE.
2. With regard to the second part of her dispute that the school could have appealed the decision but did not; I find that there were no grounds for appeal and therefore, this part of her dispute also fails.
3. With regard to the third part of her dispute, in relation to the addendum to the contract in September 2016; I recommend that to avoid any ambiguity, the first paragraph of the addendum to her contract, should reference the specific year to which such changes e.g. changes in hours, as in this instant case, may apply.
4. With regard to the fourth part of her dispute, that she wanted assurances that increases in SNA hours will be allocated to her in the future on a first-come first serve basis, I note that this is currently dependant on the NCSE.   Therefore this part of her claim cannot succeed.

SNA, Industrial Relations Act, reduction in hours