Complainant

Respondent

Anonymised Parties

A Special Needs Assistant

A Board of Management

Representatives

David Gaffney, Gaffney Solicitors

Edel Kennedy, Mason Hayes & Curran Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 (Withdrawn at hearing on October 11,2017)

CA-00009609-001

09/02/2017

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

CA-00009609-002

09/02/2017

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

CA-00009609-003

09/02/2017

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

CA-00009609-004

09/02/2017

The Complainant has worked as a Special Needs Assistant, (SNA) with the respondent school since 2007. . She currently works a 26.5-hour week. The Complainant lodged four claims before the WRC. On the third day of hearing, the claim under the Payment of Wages Act, 1991 was withdrawn.

1.CA-00009609-002 Terms of Employment (Information) Act, 1994.

The Complainant submitted that she had not received a minimum statement of her terms and conditions of employment. She had commenced work in 2007 and had received a compulsory reduction in her hours in 2011. This was accompanied by a partial redundancy payment.

2. CA-00009609-003 Terms of Employment (Information) Act ,1994

The Complainant submitted that she had not received notice of a change to her terms and conditions of employment. The Complainant submitted that her compulsory reduction of hours to ““Junior” hours of 26.5 hours in 2011 was not properly explained to her and she now had difficulty in seeking restoration to her intended 32 hours.

3. CA-00009609-004 Industrial Relations Act.

The Claimant outlined that she wished to resume a work pattern of 32 hours rather than 26.5 hours. The Claimant submitted that she was being asked to attend for a greater number of hours and was still only paid for 26.5hrs.

The Claimants Representative detailed a considerable chronology associated with the evolution of this case, where the claimant had previously been represented by a Trade Union. This incorporated a WRC Conciliation Conference held in November, 2015.

The Claimant is currently listed as No 6 in the order of Seniority of SNAs. The Claimant took issue with the way the 2011 Partial redundancy was administered. She submitted that the terms of Department Circulars permitted a LIFO approach to be adopted and this did not occur. At the same time, she was advised that she would have to work senior hours “bell to bell”, full hours. She outlined that she had sustained a 17% decrease in her pay.

The Claimant drew attention to an instance where No 5 on the seniority listing was since permitted to upwardly align back to 32 hours when a colleague forfeited her “senior” hours. This was never reciprocated for the claimant. The Claimant has made several attempts to secure the 32 hours back through staff attrition but she has been prevented from doing so due to bureaucratic challenges on temporary vs permanent status.

The Claimant accepted that the SENO is responsible for determining how many hours are required to accommodate the special needs of schools. However, she had difficulty in the ad-hoc nature of the allocation which compelled her to remain on less hours than she wanted. She submitted that the assignment of hours and particularly the recruitment of personnel amounted to persistent fundamental breaches of Departmental Circulars and were at odds with the seniority ranking.

The Claimant referred to Circular 0041/2015 dated 12 June, 2015.

It is important to note that this year, to address the issue of casualisation of employment amongst SNAs, it has been determined that, where a school has an additional allocation of SNA hours /posts or an SNA has left employment, then that additional allocation of hours/pots must be offered to any existing part time SNA in that employment in order of seniority, before the employer has recourse to these arrangements

The Claimant submitted that the terms of this circular and other subsequent circulars had been denied to her and that she had been omitted from the School based decision making forum which might have allowed her a voice in securing Pay Restoration. The Claimant expressed considerable dissatisfaction in the current communication forum which encompassed SNAs.

She raised the recent emergence of a 16 hr Retirement position and submitted that the permanent part time hours which arose from this position could be safely aligned to her hours on a seniority basis, but this had also been refused. Finally, she submitted that the cumulative hours of approved SNA posts had “morphed “by the appointment of additional SNAs over time at the school and she was keen to return to a 32-hour week.

The Claimant relied on Section 15 of Circular 0042/2017   in support of her case.

The Respondent outlined the background to the case. Special Needs Assistants are allocated to schools on an annual basis as a school’s base resource. The Allocation is provided by the Special Education Needs Organiser(SENO), a representative of the Department. It falls on the Principal of the Respondent school to implement the SENO allocation of hours in accordance with Departmental Circulars 58/06 and 59/06.

The Respondent submitted that any dispute about the terms and conditions of SNAs should be referred to the responsible Minister as the statutory body with responsibility for the terms and conditions of SNAs.

1.      CA-00009609-002 Terms of Employment(Information) Act, 1994.

The Respondent outlined that the Complainant had been provided with a standard contract of employment as outlined in the Departmental Circular SNA 15/05.This contract replaced the practice of issuing child specific contracts and had regard to the fact that all newly approved Special Needs Assistant posts were related to the special needs of one or more pupils. The Respondent denied any breach of the Legislation.

The Respondent outlined that Section 24(5) of The Education Act ,1998 sets out that terms of conditions of SNAs shall be determined by the Minister with the concurrence of the Minister for Finance.

In a previous Labour Court Recommendation LCR 20722: The parties to the Dispute were a Trade Union and the Department, the Respondent argued that they were the wrong “mark” for the claim.

The Respondent submitted that the complainant had been issued with this contract on foot of her revised hours and partial redundancy in 2011. A signed copy had been retained on file.

2.      CA-00009609-003 Terms of Employment (Information) Act ,1994

The Respondent submitted that the Board of Management should not be identified as the Employer in this case and the responsible Department was in fact the final Arbiter/ Employer. Without prejudice to that argument, the Respondent outlined that the complainant had changed to Senior hours of 32 hours per week in September 2009. A new contract was subsequently issued in September 2011 to reflect a reduction in working hours to 26.5 hrs. This action was prompted by the reduction in allocation of SNA hours and the reduction was applied across three SNAs at the school. Partial Redundancy accompanied this change.

3. CA -00009609-004 Industrial Relations Act.

The Representative for the Board of Management sought that this claim be dealt with as first of the four claims before the WRC. The Board of Management referred to this claim as a grievance which underpinned the remaining claims and sought an adjournment accordingly. Further time was then sought to make supplementary submissions in the case.

The Board of Management had not exercised their option to object to the Adjudication of this claim in the hope that this long running matter would be concluded. The Boards Representative asked that the hearings reflect that the Board of Management have not identified that the WRC is the correct forum for this case, given that the Grievance procedure does not encompass contractual issues. The Board made a very strong submission that this issue should belong on the National Stage and referred to a previous Adjudication Recommendation which denied jurisdiction in the case. The Respondent also referred to LCR 20722 which had clarified that there was no national understanding on what constituted the normal working week of a full-time SNA.

The Board confirmed that the Claimant works a 26.5 hr week with 8.50 am to 14.30 pm start and finish times. The Claimant has a combined break time of 40 minutes daily. The School has current approval for 12 SNA posts, incorporating 15 SNAS, who work a combination of hours from 32 hrs to 12 hours per week.

The Employer referred to a letter dated 25 November, 2015 from the Department to the Schools Management Body:

As you will be aware, the individual working hours of a Special Needs Assistant(SNA) are a matter to be set out by the school as an employer to all SNAs working in the school, if they are in line with the nationally agreed contracts for SNAs.

The application of Circular 59/06 is a matter for each school to apply in respect of its own circumstances and its own SENO allocation.

The SENO makes the allocation base on the care needs of the children. It is only possible for an individual to provide 25 hours contact time for a child. All the hours which have been allocated since 2011 were to provide care needs for the children. No non-contact hours have become available to the school via SENO allocation or via retirements. If this were to occur the hours would be allocated in order of seniority.

The Boards Representative took issue with the Claimants description of how hours are allocated at the school .Replacement hours to cover Maternity leave and Career breaks were effected on a “ substitute basis” in line with the Departments practice .The Claimant received a partial redundancy in 2011 and the school has not been in a position to increase her hours to 32 hours per week since that time .The Board Of Management submitted the SENO reports for the years 2012/2015/2016/2017 and re-affirmed the claimants start and finish times .

On the third day of hearing, the Board of Management indicated that they were not able to realign the hours which followed a recent retirement (12 hrs plus 4 hrs) to the complainant. The Board also indicated that the school had endeavoured to host communication meetings with staff and they were intent on re-establishing this forum.

CA-00009609-002 Terms of Employment(Information) Act, 1994

I have considered both submissions on this claim. I am satisfied that the Board of Management is the correct Employer in this case. This is evident in both the Circular 15/05 and in the contract which emerged The Labour Court has recently considered a similar claim in Killmeen National School and Joyce O Driscoll in TED 1721, where the Court reflected an initial disagreement on the identity of the Employer in the case which was subsequently agreed as the Board of Management by the parties. There was no such agreement in this case and the Department was not represented at the hearing.

It seemed to me from the submissions raised by the parties, that the Department appeared to adopt the profile of a shadow employer at intervals in this case. However, I have based my findings on the employment relationship I found at the hearings. I am mindful of the High Court findings in the case of Nano Nagle School V Daly 2015 IEHC 785, in this regard. The School and not the Dept. was the Appellant in the case.

Section 3(1) of the Act sets out the statutory requirements in relation to a written statement of terms of employment. The sole contract presented in this case was the document con jointly signed by the parties on September 1, 2011.On careful examination, this document incorporates all the requirements of Section 3(1) of the Act, save Section 3(1)(m)

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, of the bodies or institutions by whom they were made.

I note that the contract provides for adherence to Departmental Circulars, but this does not equate with the requirements of Section 3(1)(m). Consequently, I find that there has been a continuous breach in Section 3(1) (m) of the Act and the complaint is well founded.

I note the Courts findings in Joyce, where the breach of the Act was found to “have no practical effect on or consequence for the Appellant.” I find that the breach is very relevant in the claimant’s employment relationship.

CA-00009609-003 Terms of Employment(Information) Act, 1994

I have carefully considered the submissions as advanced by the parties. Both parties accepted that a Redundancy payment was offered and accepted by the complainant in the Autumn of 2011.

Section 41(6) of the Workplace Relations Act, 2015, sets down a narrow window of 6 months for action in terms of an alleged breach in the Legislation. I find that this claim is therefore out of time.

CA-00009609-004 Industrial Relations Act

I have considered both party’s submissions, both oral and written. It was necessary to schedule this case over three days to afford both parties an adequate opportunity to prepare and state their cases. I believe that it is appropriate at this juncture to reflect that a very deep conflict exists between the parties in this case. On the one hand, the claimant believes that she has been personally slighted and overlooked for pay restoration and on the other hand, the Respondent, comprised largely of a Volunteer Board expressed a vulnerability that this case would be taken as a precedent and sought always to re-align the case to the National stage. I understand both party’s positions. I am also aware of a brewing National Dispute involving this embryonic grade of SNA.

My role in this case is defined in Section 13 of the Industrial Relations Act, 1969.

Section 13(2) provides that where a Trade Dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the original Act, a party to the dispute may refer it to a Rights Commissioner, (now Adjudication Officer)

In a recent Labour Court case of Meads Bar Ltd T/A Victoria Café and A Worker, The Deputy Chair of the Court outlined the meaning given to a Trade Dispute for the purposes of the Industrial relations Act 1946-2015.

Section 3:

The expression Trade Dispute means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person and includes any such dispute or difference between employers and workers where the employment has ceased.

I am not prepared to be drawn into any precursor for a National Dispute within the grade of SNA. I have considered the submissions from both parties and I find that the localised dispute submitted in the case is encompassed by the definition of Trade Dispute Section 3 of the Act and is not prohibited by the reference to a Body of workers claims detailed in Section 13(2) of the Act. I intend to deal with this claim on that basis without precedential value. The claim surrounds a desire to increase working hours at a named school encompassing one worker .

The genesis of this case evolved from the reduction of the claimant’s hours in academic year 2011.She accepted a Redundancy Payment now. I have found that neither party had a comprehensive understanding of this process. The Respondent understood that it could request the claimant to work full hours for less pay and the Claimant understood that the reduction of hours was a short-term measure capable of speedy restoration. The seeds of unrest were clearly sown from this point onwards and the issuing of a myriad of largely “remoted worded “circulars did little to resolve this conflict.

I accept that the Respondent has done all in its power to seek a resolution in this case and I appreciate that while guidelines seem to exist on establishing a pathway to resolution, in Circular 0042/2017, progress has not been possible through the exception clause in the circular. From the complainant’s perspective, she cannot comprehend that she has been overtaken by the repeated supplementary appointment of SNAs without benefitting from the clause that she is to be offered supplementary hours “first in time”. This has caused the claimant to push the boundaries between her and her Management Team, which has led to significant conflict which now requires to be fixed.

I studied all the circulars placed before me and I found them to be incomplete for the purposes of this case as they were not accompanied by any actual evaluation or reportage process. It was impossible for me to know whether these circulars are live and operational documents or just reference papers. In other words, I had no idea whether the circulars had resulted in the full or partial implementation of Section 15 of the 2017 circular.

However, what seemed very certain to me was the “lynch pin “primary role held by the SENO in allocation of SNAs posts. It was clear to me that the Employer in this case held a secondary role and the claimant was clearly disempowered in that process. A further impediment seems to have emerged due to the late notification of annual approvals for SNAs. They have traditionally appeared retrospectively following commencement of the Autumn term .This narrows the potential for progress on efficient work force planning, inclusive of requests to increase and decrease hours   considerably . I am mindful that allocated hours are “ child centred” yet this must be balanced fairly with the needs of the staff .

I find that that there is merit in this Dispute and I would like to make a recommendation for consideration by the parties on a strictly personal basis to the claimant, and without precedent value. I make this recommendation as the claimant has been disadvantaged regarding Salary and Pension.

Decision and Recommendation:

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaints and dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 7 of the Terms of Employment (Information) Act, 1994 requires that I decide in relation to the complaints in accordance with the relevant redress provisions under the Act.

1.      CA-00009609-002 Terms of Employment(Information) Act, 1994.

I have found that the complaint is well founded. In accordance with Section 7(2)(ii) of the Act, I order the Respondent to add the statement outlined in Section 3(1)(m) to the complainants written statement of terms of employment within four weeks of the date of this decision.

2.CA-00009609-003 Terms of Employment(Information) Act, 1994

I have carefully considered the submissions as advanced by the parties. Both parties accepted that a Redundancy payment was offered and accepted by the complainant in the Autumn of 2011.

Section 41(6) of the Workplace Relations Act, 2015, sets down a narrow window of 6 months for action in terms of an alleged breach in the Legislation. I find that this claim is therefore out of time.

3.CA-00009609-004 Industrial Relations Act Recommendation.

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

I have found merit in the Dispute raised. I have gleaned that the Seniority List has recorded the claimant as No 6. There are two SNAs currently on career break and replaced by substitutes, (one part time, one full time). The other three SNAs are all full time and the claimant wishes to join the ranks of Full Time Workers at the School. There are 9 other part time SNAs.

I recommend that the claimant be prioritised for Full time work prior to the appointment of any further SNAs in the forthcoming Academic year 2018/2019. I appreciate that the total of 12 posts is a fluid number, but every effort should be made to make this happen through the existing network of the Principal and the SENO. I recommend that the claimant stand back from the process to allow the two responsible Managers scope out a resolution in line with Section 15 of Circular 0042/2017 or its successor. I also recommend that the claimant receive two monthly updates on progress made .

I accept that the School is committed to enhanced the staff communication forum at the school.

Key Words: Allocation of Hours, Special Needs Assistant. Terms of Employment.