FTD183

Blackrock College is a private secondary fee paying school that is located in South County Dublin. Ms Coyle is employed by the College as a teacher of Art. Ms Coyle claims that the College has employed her on a series of fixed term contracts of employment since 1984 and that she has at this point accrued an entitlement, by operation of law, to a contract of indefinite duration within the meaning of section 9(3) of the Act. She further complains that the Respondent has infringed section (8) of the Act by failing to set out in writing the reason why it renewed her fixed term contract of employment each year rather than employ her on a contract of indefinite duration. Finally, she submits that, contrary to section 6 of the Act, the College treated her less favourably in respect of her terms and conditions of employment than a comparable permanent employee.

The Complaint was considered by an Adjudication Officer who in December 2017 delivered her decision as follows:

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

    In accordance with Section 41(5) of the Workplace Relations Act, 2015 and in view of my findings above I declare the complaints are well founded in part.

    CA-00009094-001

    Section 6. I declare the Respondent has breached Section 6 of the Act in that the Complainant has been treated in a less favourable manner than other comparable employees whether paid from Public Funds or paid from the private funds of the College. I direct the Respondent to place the Complainant on an annual salary covering 12 months of the year, to be paid monthly, of €49,333.33 (the Complainant is currently paid €37,000 to cover 9 months of the Year). This to be implemented within 42 days of the date of this Decision. I also direct the Respondent to provide the Complainant in writing with the details of the Pension plan of the Respondent.

    CA-00009094-002

    Section 8. I declare the Respondent has breached Section 8(1) and Section 8(2) of the Act in that the Complainant was not informed in writing by the Respondent of the objective reasons governing the renewal of her fixed-term contracts not was she informed by the Respondent of the objective reasons why she was not being offered a Contract of Indefinite Duration. I direct the Respondent to pay the Complainant compensation of €5000.00 (five thousand euro) within 42 days of the date of this decision

    CA-00009094-003

    Section 9. I declare the Respondent has breached Section 9 of the Act. I direct the Respondent to provide the Complainant with a Contract of Indefinite Duration effective from June 2007 within 42 days of the date of this Decision.

    CA-00009094-004

    Section 10. On the basis of my findings above I declare the Respondent has not breached Section 10 of the Act.

    Dated: 14th December 2017

The case came on for hearing before the Court on 28 March 2018.

Complainant’s Position

The Complainant, Ms Valerie Coyle, has been employed privately by Blackrock College as an Art teacher since 1984. She was initially employed in a part time capacity. Since 1988 she has been employed in a full-time capacity by the College.

In 1995 Ms Coyle took a period of maternity leave. She was replaced at that time by another teacher Mr Wyer, who on her return to work after maternity leave was retained in employment by the school. He was subsequently made head of the School’s Art Department.

In 2005 Ms Coyle was requested to run an Art Club on Wednesday afternoons and on Saturday mornings. The class ran for an hour and three quarters. These duties were deemed part of her normal work. She believes that no other teacher was required to work additional hours on either Wednesday afternoons or Saturday morning for which they received no additional pay.

In 2015 she told the College that she no longer wished to run the Art Club on Wednesday afternoons as she was not being paid for the work involved. The College undertake to pay her overtime to continue with this work. In the event the College paid Ms Coyle the sum of €500 per annum for the work involved in running the Art Club. Ms Coyle submits that this amount is substantially below the amount that would be paid to a comparable teacher with more than 20 years’ experience.

The Complainant ran the Art Club in 2015 and 2016 but withdrew from it at that point. The College then appointed Mr Wyer to run the Art Club. No details of Mr Wyer’s remuneration for this work was opened to the Court.

According to her contract of employment Ms Coyle was paid an annual salary. She worked in the school for 9 months of the year, effectively the academic year, and signed on for Job Seekers Benefits during the summer holidays. She submits she received no payment for those months and maintains that she was laid off each year at the end of her annual contract of employment.

She submits that she was re-employed each year on a fresh fixed term contract of employment for the upcoming academic year. She submits that this arrangement continued each year with the exception of academic year 2004/2005. She submits annual P45 statements that disclose that she was employed each year for 39 weeks insurable employment in the relevant period. The school provided her with a statement of her insurable employment each year which she presented to the Department of Social Welfare when applying for Job Seekers Allowance each summer.

The Complainant submitted copies of fixed term contracts of employment for academic year commencing in September 2001, 2002 and 2003. The 2003 contract expired in June 2004.

At that point she was issued with a permanent contract of employment that took effect from 20 August 2004. The Complainant received no new contract in 2005. However, in February 2006 the Complainant was issued with a fixed term contract of employment that ran from August 2005 to 2 June 2006.

The school did not issue the Complainant with any further contracts of employment. However, her employment continued and she worked as a teacher in the College during the academic year and continued to claim Job Seekers Allowance during the school holidays each summer.

She contends that she was employed on a series of fixed term contracts of employment at the start of the school year and that she was dismissed when the school year ended in June. She contends that the School treated her as a fixed term worker within the meaning of the Protection of Employees (Fixed Term Work) Act 2003. She further submits that as a fixed term worker she comes within the provisions of s 6 of the Act and is entitled to no less favourable treatment in respect of her terms and conditions of employment than a comparable permanent employee.

She submits that she was so less favourably treated contrary to section 6 of the Act in so far as she was not notified of and allowed to compete for vacancies that arose within the school. She submits that she was not given access to training and education that would have enabled her to register with the Teaching Council of Ireland and thereby to qualify for recognition by the Department of Education and Science and to benefit from the superior employment and pension terms available to registered teachers who are paid by the State.

She complains that she was not, contrary to section 8 of the Act, given reasons in writing setting out the reason why she was being offered a fixed term contract of employment and not offered a contract of indefinite duration on each occasion the contract was renewed.

Finally, she complains she has accrued an entitlement to a contract of indefinite duration in accordance with section 9 of the Act.

Respondent’s Position

The Respondent states that the Complainant was initially employed in 1984 on a part-time fixed term contract of employment. It submits that between 1998 and 2004 it employed her on fixed term full time contract of employment. It submits that Ms Coyle was paid an annual salary. It relies on the relevant contract of employment that in 2002, in relevant part, states

Remuneration

Your rate of pay is 29,200 gross for the year inclusive of holiday pay. You will be paid monthly in arrears. Payment will be made direct to your bank account through the Paypath system This method of payment may be changed at the discretion of the College.

It states that this clause, with adjustments in the level of salary, is repeated in each successive contract of employment entered into with the College by Ms Coyle.

The College states that the Complainant became a permanent member of the staff in August 2004 when she was issued with a contract of permanent employment. It submits that in error she was issued with a further fixed term contract of employment in 2005 but that this was never repeated thereafter.

It submits that the Complainant is not qualified to register as a teacher with the Teaching Council and accordingly is privately employed by the College. It submits that the terms and conditions of employment of the Complainant are determined by contract between the parties and are not on a par with those provided to registered teachers financed by the Department of Education and Science.

It submits that the Complainant sought to be paid her salary on the basis of 9 months employment and elected to sign on for Unemployment Benefit or its equivalent each year. It submits that this arrangement did not alter the permanent nature of her employment. It submits that it simply enabled the Complainant to receive additional payments through the social welfare system during the summer holidays.

It submits that after 2006 it never sought to deny that the Complainant is a permanent member of the staff of the College. In support of this position it says that when her employment status was first raised with it by the Complainant in correspondence from her solicitors in October 2016 it responded in the following terms

“Your client is clearly a permanent member of the staff of the College. She is a valued member of staff, which is why the principal has spoken to her on a number of occasions about her obtaining a teaching qualification which would allow her to register with the Teaching Council and expand the opportunities available to her. At present she is paid out of private resources of the College. As is the case of other privately paid memebrs of staff, your client was provided with an opportunity to a pensions scheme.”

It supports this contention with copies of successive internal records for 2007 and subsequent years that refer to Ms Coyle as holding a “private CID” within the College.

It therefore raises as a preliminary point the contention that the Complainant is a permanent member of the staff of the College and does not have locus standii to bring these or any other proceedings under the the Act.

Discussion

In order to come within the terms of the Act an employee must be a fixed term worker within the meaning of the Act.

In this case the College submits that the Complainant is not a fixed term worker and cannot bring proceedings under the Act.

The Complainant submits that she is a fixed term worker within the meaning of the Act, is treated as such by being employed on a fixed term contract of employment each academic year and therefore comes within the scope of the Act. She further submits that the records disclose that she is in effect dismissed in June at the end of each school year and re-employed in September when the school reopens at the commencement of the new school year.

The Court has given careful consideration to the evidence adduced in the written submissions and in the extensive oral submissions made in the course of the hearing into this matter.

Based on the evidence before it the Court finds as follows

• 
  1. The Complainant was initially employed on a series of fixed term contracts of employment until she was employed on a permanent contract of employment in 2004/2005.

  2. She was subsequently employed on a further fixed term contract of employment in 2005/2006. Thereafter she received no further written contracts of employment of any type.

  3. The internal documents within the College record the Complainant as the holder of a “Private CID” on successive years from as early as 2007. The Court therefore finds that the College considered the Complainant a permanent member of staff from that time onwards.

  4. The Court attaches no significance to the arrangement that was in place whereby the Complainant signed on for Unemployment Benefits each summer. There are many permanent seasonal contracts of employment in place in the economy. The fact that they are seasonal does not detract from the fact that they are permanent contracts of employment.

  5. The Court finds that the Complainant is employed on a permanent annual 39-week contract of employment. She is laid off in June of each year and resumes work in September.

  6. The Court finds that the Complainant’s contracted annual salary is paid to her over 9 months. The Court further finds that whether this arrangement was introduced at the Complainant’s request or by decision of the school does not alter the permanent nature of her employment. Accordingly makes no decision on the origin of this arrangement.

  7. The Court finds that this case can be distinguished from the facts that applied inMinister for Finance v. McArdle[2007] E.L.R. 165. In that case the Minister denied that the Complainant had acquired a contract of indefinite duration until the eve of the case coming on for hearing. The Court found that conceding this aspect of the complaint at such a late stage in proceedings could not be relied upon by the Minister for Finance to defeat Ms McArdle’s complaint that she had been treated less favourably than a permanent employee while being treated as a fixed term worker by her employer. By way of contrast the College, in this case, at no point sought to deny that the Complainant was a permanent employee. When it received correspondence from the Complainant’s Solicitors in October 2016 it immediately replied that it considered and treated her as a permanent member of staff. That was the first time the issue had been raised by the Complainant with the College and the enquiry was immediately met with an assurance that the Complainant was a permanent employee.

  8. In that regard the facts of this case bear no comparison with those that applied in McArdle.

  9. Even if the Complainant were to establish that she was on a series of successive fixed term contracts of employment at the time at which the Complaint was lodged with the Workplace Relations Commission she had in fact acquired a contract of indefinite duration by operation of law (Minister for Finance v. McArdle[2007] E.L.R.) and was no longer a fixed term employee. Had the College denied or hesitated in acknowledging that the Complainant was a permanent employee then her claim could succeed and she would come within the scope of the Act in respect of both sections 6 and 9 of the Act.

  10. However as the College treated her at all times as a permanent employee and immediately confirmed that status when queried on the matter she cannot come within the scope of the Act. Accordingly when she submitted the complaint under the Act she was not a fixed term worker within the meaning of the Act nor was the College claiming that she was anything other than a permanent employee.

For the reasons outlined above the Court finds that the Complainant is not a fixed term worker within the meaning of the Act, does not come within the scope of the Act and cannot maintain a complaint under section 6 of the Act.

The appeal is allowed. The decision of the Adjudication Officer is set aside.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
JD______________________
5 June 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.