ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002101

Complaints/Dispute 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, following the referral of the complaint/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 referred under separate reference as ADJ 2099 in which the parent Government Department was the respondent. Both cases were heard at a single hearing with the consent of the parties.

In respect of CA-00002874-001 the complainant 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-00002874-002 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 and is then subsequently calculated over a rolling four year reference period. Then, 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 respect of CA-00002874-003 she is seeking the establishment of a dispute resolution process in respect of incidents which occurred some years ago.

Respondent’s Submission and Presentation:

The respondent says that the complainant had, in fact been given a statement which complies with the requirements of the Act when she commenced employment in February 1995.

In relation to the complaint under the Organisation of Working Time Act, 1997 the respondent has submitted that while it is the complainant’s employer it is not responsible in relation to matters of payment.

In a related case where the parent Government Department was named as the respondent this matter came up for consideration (by this adjudicator, see ADJ 2099)

The respondent in that related case said that all of the complaints were matters for her direct employer; the school; (the respondent in this case) and that it was not the employer of the complainant and not the correct respondent in respect of the complaints in ADJ 2099.

As it is also relevant here, 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 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.

A number of authorities of the higher courts and the Equality Tribunal were cited by the ADJ 2099 respondent for the purposes of that case and they are relevant here.

For example, the Supreme Court considered the matter 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 and held 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’.

The respondent submitted a series of similar decisions of the Employment Appeals Tribunal and the Equality Tribunal all consistently holding that teachers’ direct employer was the school or the Board of Management for which they worked and not the Minister or the Department of Education and Science.

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

The position in practice therefore, is that while a government Department lays down pay rates, annual leave provisions and practically all conditions of employment (following negotiations with the teacher trade unions, or similarly in the health service) it is the legal position that it, the Department, is not the employer. This is a generally understood position and applies elsewhere in the Irish public service; the HSE for example where the Government Department is not, on the legal authorities referred to here, the employer of a nurse in a particular hospital, for example.

In the first instance I find therefore in line with the very substantial authority opened by the respondent in the related case 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 and meets the commonly accepted notion of ‘the employer’.

Therefore, I consider all complaints here are clearly a matter for the complainant’s direct employer; her school and the current respondent in this case in the form of the Board of Management. This is merely the outworking of the practical realities of how state services are organised, administered and delivered.

In respect of CA-00002874-001, it was the school which gave her the original document which is now relied on as having been in compliance with the terms of Employment Information Act 1994 (but which the respondent says is defective in detail).

The Labour Court has addressed the issue of where small matters of detail are omitted from the statutory statement and has made it very clear that compensation will not arise in such cases.

In the circumstances of this case that represents an unacceptable squandering of public resources. It is a manifest absurdity to suggest, as the Complainant does, that these contraventions, if such they are, could or should be met with an award of monetary compensation. That is particularly so in circumstances in which the matters now complained of could easily have been rectified by a simple request to the Respondent to provide any further information that the Complainant considered necessary.

Irish Water v Patrick Hall, Decision no TE 15/6 TED 161

This was an appeal from the Rights Commissioner who had directed the employer to update and correct the relevant details and I will do likewise. The details requiring amendment are very minor indeed.

In respect of CA-00002874-002, 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 insofar as they may apply to public holidays and again I find that the correct respondent is the current one i.e. the Board of Management, even if it is implementing a scheme over which it has little or no discretion.

The parties were invited to make subsequent legal submissions on this point and did so. The complainant relied on a number of authorities but did not make any submission as to their relevance or applicability to the case in hand and I can see nothing in them which has any specific bearing on the current complaint.

The question raised by the complainant at the hearing was what the correct rate of payment for a public holiday should be when the absence arose within six months of the sick leave.

This arises because the complainant was on a reduced rate of pay at the time of the public holiday in question (January 1^st 2016) as a result of the cumulative effect of the public service sick pay scheme which runs, not on an annual basis, but from the date on which the first incidence of sick leave occurs and for a four year period.

This means that the first date of a person’s sick leave for the purpose of calculating the correct rate of pay is the first date of absence within the four year reckonable period, and not the then current period of absence.

The respondent’s net point was that the complainant had received pay for the public holiday in question in line with, effectively, her conditions and contract of employment. Her entitlement to time off in lieu is protected under the provisions of the relevant Department Circular which will come into effect when her current period of sick leave ends.

It submits that this represents full compliance with the Act and I find that it does.

Finally, in respect of CA-00002874-003 I have proposed that the matter be referred to mediation and separately, and with the agreement of the parties I have proposed a number of suitable mediators on the basis of which the complaint was withdrawn.

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.

In relation to CA-00002874-001 I find that here were a number of minor technical breaches of the Terms of Employment (Information) Act. The respondent should amend and update the statement as appropriate.

In relation to CA-00002874-002 I find that the respondent did not breach the Organisation of Working Time Act and that complaint is not upheld.

As noted above in relation to CA 2874-003 the complaint was withdrawn in favour of mediation and it is dismissed.

Dated:   08/03/2017