FULL RECOMMENDATION
SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2014 PARTIES : DEPARTMENT OF EDUCATION & SKILLS (REPRESENTED BY CATHY SMITH B.L., INSTRUCTED BY CHIEF STATE SOLICITORS OFFICE) - AND - KENNETH MC CARTHY DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms Tanham |
1. An appeal of an Adjudication Officer's Decision No: ADJ-00002702.
BACKGROUND:
2. This is an appeal under Section 8(1) of the Terms of Employment (Information) Acts, 1994 to 2012. A Labour Court Hearing took place on the 8 November 2017. The following is the Court's Determination:
DETERMINATION:
This is an appeal by the Minister for Education and Skills against the Decision of an Adjudication Officer ADJ-00002702 under the Terms of Employment (Information), Act 1994 (the ‘1994 Act’). In this Decision the parties are referred to as they were at first instance, hence Mr McCarthy is referred to as ‘the Complainant’ and the Minister for Education and Skills is referred to as ‘the Respondent’.
Background
The Complainant is employed as a Principal Teacher since September 2009 at Kilmeen National School under a contract of employment with the Board of Management (‘the Board’) of the school. He was initially employed as a Teacher starting in September 2003.
A complaint of breaches of the 1994 Act was received by the Workplace Relations Commission on 5thApril 2016. The Complainant alleged that when he was appointed as an Administrative Principal at the school in September 2012, this change to his terms of employment was not notified to him in writing as required by Section 5 of the 1994 Act. He further alleges that when he was returned to Principal Teacher status in September 2015, this change, similarly, was not notified to him as required.
In a Decision dated 15thJune 2017, the Adjudication Officer permitted an extension of the time limit for presentation of the complaints and found that the complaints under the 1994 Act were well founded and ordered that a written statement in compliance with Section 3 of the 1994 Act, which statement to include a job title of Administrative Principal, be provided to the Complainant.
The Respondent appealed the Adjudication Officer Decision to this Court on 24thJuly 2017. The appeal came before the Court on 8thNovember 2017.
Preliminary Issue
A preliminary issue to be determined in this case is the question of who is the correct respondent. The Adjudication Officer found, at first instance, that the correct respondent was the Minister.
The Court indicated to the parties that it would issue a decision on this preliminary matter before proceeding, if necessary, to deal with the jurisdictional issue relating to the time limit and the substantive claims under the 1994 Act.
The decision herein is, accordingly, confined only to dealing with the preliminary matter of the identity of the correct respondent. Should the Court find that the Respondent impleaded in this case is indeed the correct respondent then a further hearing with the parties will be convened to proceed to deal with the remaining matters. If the converse finding is arrived at then the Court has no further function in the matter.
The Court received comprehensive written and oral submissions from the Complainant and on behalf of the Minister on the preliminary point at the hearing and received further written submissions from the parties subsequent to the hearing.
The Complainant accepts that he is employed under an express contract of employment with the Board of the school. He contends, however, that for the purposes of the 1994 Act there also exists an implied contractual employment relationship between him and the Respondent. In this regard, he places heavy reliance in particular on the decision of the Court of Appeal inThe Minister for Education and Skills v Anne Boyle[2017] IECA 39 (“Boyle”).
The Respondent denies the existence of a contract of employment with the Complainant and submits that only the Board can be impleaded as the employer for the purposes of the 1994 Act. The Respondent further submits that under the Education Acts 1998 to 2012 it has statutory functions in setting terms and conditions for school teachers and principals and that the Board does not therefore have any lawful powers to set required pay and conditions for teachers and principals. However, the Respondent states that while it has statutory responsibility for setting the terms and conditions, the responsibility under the 1994 Act for informing and notifying employees in relation to the conditions applicable to their contracts of employment rests with the Board and there is no concomitant restriction on the Board in carrying out that lawful function as required under the 1994 Act. The Respondent submits therefore that the Board is the only appropriate respondent in this case and that it is therefore improperly impleaded in this matter.
Discussion
Hogan J inBoyle, traces in great detail the case law in relation to what he refers to as “the nature of the triangular pact identified by Gibson J in [Fox v Higgins(1912) 46 ILTR 222] over 100 years ago [that] still defies any standard conceptual analysis, at least for the purposes of the general law of contract.” (Par 78). Nevertheless, the learned Judge concludes his analysis with the observation that “the legal realities” of the relationship between a teacher/SNA, the Board of the school in which that person is employed and the Minister is that the teacher/SNA has two employers: the Board is the employer for certain mattes arising from an express contract with the school; the Minister is the employer for other purposes (such as for example, availing of employment protections in matters relating to pay and remuneration) based on an implied contract between the teacher and the Minister. Hogan J, in upholding the views of O’Malley J in the High Court, states:
- “This, in my view, is one of the results of the unique tripartite arrangement in relation to education in this State. In relation to teachers whose salaries are paid by the State the role of employer is, uniquely, split. Part of it is played by the management of an individual school and part by the Department of Education. The former has the right to hire, discipline, dismiss and generally direct a teacher in the day-to-day running of the school. The Department, on the other hand, sets the rules about, and pays the salaries. Since it thereby takes on what would normally be the rights of an employer in relation to pay, it follows, in my view, that it carries the legal duties of an employer associated with pay. It has been clear since, at least, the 1940 decision of the Supreme Court in McEneany that compliance with its own Departmental rules is one such legal obligation, and is a matter of contractual right on the part of teachers. I cannot see that compliance with rules imposed on employers by legislation in respect of pay and pay-related matters should be treated any differently. To hold otherwise would be to impose on school management bodies legal responsibility where they have no legal power.”
It is clear therefore that while the Minister can be considered to be the employer of a teacher and principal, the Minister is not considered to be the employer for all purposes. The Minister’s role as employer is confined, not least by reason of his statutory functions under the Education Acts, to certain matters concerning pay-related employment protections. While theBoylecase specifically relates to a claim under the Protection of Employees (Part-time Work) Act 2001, the judgment would appear, at least by analogy, to apply to all employment-related protective legislation that impacts on employees’ remuneration entitlements.
This Court is clearly bound by the judgment of the Court of Appeal. Applying the reasoning of that judgment, the Court is satisfied that the correct respondent for the purposes of the claims under the 1994 Act is the Board.
Indeed, the Complainant appears to accept that position. In his written submission to the Court subsequent to the hearing on 8thNovember last, the Complainant states that he accepts that in the normal course of events the employer for the purposes of determining whose responsibility it is to issue a statement of terms and conditions in compliance with the 1994 Act to a teacher would be the Board. The Complainant goes on to state that the disputed matter is not which of the two possible employers of a teacher is the relevant one for these purposes but rather the matter in dispute is one of the actual terms of employment stipulated by the Minister in his case, namely, the Complainant’s status as an Administrative Principal or a Principal Teacher. That dispute is clearly not a matter which comes within the parameters of the 1994 Act.
For the reasons outlined in the foregoing, the Court is satisfied that the Respondent is incorrectly impleaded in this matter and is not the Complainant’s employer for the purposes of the 1994 Act.
Accordingly, the complaint under the 1994 Act fails, the Respondent’s appeal is allowed and the Adjudication Officer Decision is overturned in full.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
9 January, 2018Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.