ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002099

Complaints for Resolution:

Date of Adjudication Hearing: 06/12/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaints/dispute to me by the Director General, I inquired into the complaints/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints/dispute.

Complainant’s Submission and Presentation:

The complainant is employed as a Special Needs Assistant in a school which is funded by a Government Department.

The complaint is also addressed under separate reference as ADJ 2101 in which the school as her immediate employer is the respondent.

In respect of CA-2873-01 she says that she was not given a Statement of Terms of Employment or that the statement given to her is defective in respect of some areas of detail, such as the details of the name and address of her employer, the pay reference period and that it does not carry a current signature.

CA-2873-002 relates to the applicable rate of pay during sick leave absence. A conflict was identified between the rate of pay provided for under the regulations of the DES and the provisions of the organisation of Working Time Act which she says should be resolved in favour of the latter.

Under the former (the regulations of the Government Department) sick leave is considered with in a four year time frame which commences on the first day of illness. Subsequent reductions in the applicable rate of sick pay are calculated by reference to the starting point in the four year period.

The complainant says that this is in breach of the provisions of the Organisation of Working Time Act and that there should be no reduction in the applicable rate within six months of an illness.

This is considered further below in the context of who is the correct respondent in the matter.

In respect of CA 2873-003 she is seeking the establishment of a dispute resolution process in respect of incidents which occurred some years ago. (While this appears on the summary of complaints above it was not on the notice of hearing to the parties. However I will include this in my consideration of the preliminary issues).

Respondent’s Submission and Presentation:

The respondent says that all of these are matters for her direct employer; the school. The respondent says that it is not the employer of the complainant and not the correct respondent in respect of any of the complaints.

It relied on the definition of employer in various employment Acts as;

‘…the person with whom the employee has entered into and for whom the employee works under (or where the employment has ceased) has worked under) a contract of employment.

The respondent says that the complainant in this case works under a contract of employment with the Board of Management of her school which has responsibility for recruitment, selection, appointment, discipline and dismissal of staff.

It also relied on a number of authorities of the higher courts and the Equality Tribunal.

For example the Supreme Court has held in the case of O’Keeffe and Hickey, [2008] IESC 72 a case where the Court examined the relationship between the Minister and a teacher that the employment relationship does not lie between the Minister and a teacher.

Also in the same court Kenny J held in Crowley v Ireland [1980] IR 102 that ‘teachers, though paid by the state were not employed by and could not be removed by it’.

It relied on a series of similar decisions of the Employment Appeals Tribunal and the Equality Tribunal all consistently hold that teachers’ direct employer was the school or the Board of Management and not the Minister or Department of Education and Science

While these decisions relate to teachers, they also apply to Special Needs Assistants.

Preliminary Issue

In the first instance I find in line with the very substantial authority opened by the respondent and not disputed by the complainant that the correct respondent in all complaints is the School and its Board of Management which exercises day to day control over the employees in the normal way of the employment relationship.

In particular, I consider that both CA 2873-001 and 003 are clearly a matter for the complainant’s direct employer; her school. Also I note that the parties were not on notice as to the latter complaint.

I will therefore address both these issues in my decision under ADJ 2101 and will not consider them further here save to make a decision under this complaint.

In respect of CA 2873-002 the complainant submitted that the operation of the state provisions for the complainant on long term sick leave are at variance with those of the Organisation of Working Time Act. While there is some difference here in that the sick leave scheme is a national one and while the respondent in this case accepted that it operates the payroll system, neither does this transform the Department into the ‘employer’ on the basis of the above authority.

Accordingly, I find that the respondent in this case is not the employer, or the correct respondent and all these complaints are more properly addressed to the direct employer, the school and its Board of Management.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints/dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the reasons outlined above I do not uphold complaints CA-2783001, 002 and 003 as the respondent has been incorrectly identified and I dismiss the complaints,

Dated:   08/03/2017