UDD1837

FULL RECOMMENDATION

UD/17/78

DETERMINATIONNO.UDD1837

ADJ-00005329 CA-00007484-001

SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015

PARTIES :

MALAHIDE COMMUNITY SCHOOL
(REPRESENTED BY TOM MALLON B.L.,INSTRUCTED BY MASON HAYES & CURRAN)

- AND -

DAWN-MARIE CONATY
(REPRESENTED BY PADRAIC LYONS B.L., INSTRUCTED BY BYRNE WALLACE SOLICITORS)

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Ms Doyle
Worker Member: Ms Treacy

SUBJECT:
1. Appeal of Adjudication Officer's DecisionADJ-00005329.

BACKGROUND:

2. A Labour Court hearing took place on 12th June, 2018. The following is the Determination of the Court:

DETERMINATION:

Malahide Community School appealed to the High Court, on a point of law, against Labour Court Determination UDD1752, dated 22^ndNovember 2017. The Court in its Determination dealt with an appeal by Ms Dawn-Marie Conaty against the decision of an Adjudication Officer ADJ-00005329 under the Unfair Dismissals Act 1977 – 2015 (the Act) in a claim against her former employer, Malahide Community School. The High Court remitted certain matters for further consideration by this Court

For ease of reference the Court will continue to give the parties the same designation as they had at first instance. Hence Ms Conaty will be referred to as “the Complainant” and Malahide Community School will be referred to as “the Respondent”.

The Adjudication Officer in her Decision considered a preliminary issue raised by the Respondent – that she had no jurisdiction to hear the complaint as the Complainant’s employment was under a fixed term contract and the termination arose only as a result of the expiry of the fixed term under section 2(2) of the Act. The Adjudication Officer concluded that as the criteria in section 2(2) of the Act had been met that she had no jurisdiction to hear the claim.

The Court in its Determination overturned that Decision. In its findings the Court stated that it was not satisfied that the fixed-term contract referred to, which contained an exclusionary provision, could be relied upon by the Respondent to preclude the application of the Act to the Complainant’s dismissal. In those circumstances, the Court found that the Complainant was unfairly dismissed when her contract was not renewed on 1st September 2016. It ordered the Respondent to re-engage the Complainant in the school from the commencement of the 2018/2019 school year and be paid on the Teacher’s Common Basic Scale without loss of her prior service.

The decision of the High Court is set out in paragraphs 22 to 30 of the Judgement as follows: -

“22. I do not accept that there was any error of law on the part of the labour court in dealing with the totality of the matter rather than making an initial determination as to whether or not s.2(2)(b) applied so that the labour court had no jurisdiction. No jurisprudence is raised on behalf of the appellant to suggest that once the reliance upon s.2(2)(b) of the Act was raised by the appellant as a preliminary point the labour court was obliged to first consider this point in the absence of consideration of the entirety of the matter before the labour court.

23.Following on from the matters in the next preceding paragraph, in
my view, there was no error of law in the consideration of the respondent' s prior employment status with the appellant prior to the execution of the contract of the 20th October 2015. Although the appellant correctly complains that the labour court recorded erroneously, that by reason of the respondent's permanent employment status with the appellant prior to the execution of the contract of the 20th October,2015 the continuity of her employment is not in dispute,this in my view is not sufficiently material to vitiate the decision of the labour court as at page 11 of the decision under the heading of "Courts Findings" the court accepted that had the respondent not signed the contract her employment may have been in jeopardy.

24. Although the respondent's arguments as to the interplay between
the various sections of the 1977 Act and in particular s.2 (2)(b) and s.13
may well be considered to be arguments well made as to the interplay
between these sections nevertheless it is clear from a reading of the
decision that the labour court, from page 10 onwards of the decision under the heading of" Courts Findings", did not refer at all to s.13 nor indeed did it specifically refer to s.2 (2)(b); accordingly such argument now made on behalf of the respondent cannot be imputed into the decision of the labour court.

25. In Donal Hurley v. Royal Yacht Club, aforesaid, a decision of the
Circuit Court of 1997, the court was dealing with an appeal from a
determination of the Employment Appeals Tribunal which held that the
claimant was precluded from pursuing proceedings before the Tribunal
because he had signed an agreement accepting certain payments in full
discharge of all claims against the respondent. The court held that it
could not have been the intention of the legislature to prevent employersand employees from compromising claims under the Act and the doctrine of informed consent applied to contracting out provisions and to s.13. To this end the appellant was entitled to be advised of his entitlements and the agreement of compromise should have listed the various Acts which were applicable or made it clear that they had been taken into account by the appellant and the appellant should have been
advised in writing that he should take appropriate advice as to his rights. In the circumstances of that case the court found that the agreement was void

26. The issue before the court in Sunday Newspapers Ltd v. Steven
Kinsella and Luke Bradley was a severance agreement and whether
employees under fixed term contract were treated less favourably than
comparable permanent employees. That matter came before Smyth J in the High Court in October 2007. The decision of Buckley J in Hurley v. Royal Yacht Club 'was open to Smyth .J Both parties accept that Smyth J apparently accepted the views adopted by Buckley J in Hurley v. Royal Yacht Club.

27. Significantly, in my view, neither of the judgments aforesaid dealt
with s.2(2)(b) of the 1977 Act (or any similar such statutory exception)
which was clearly the cornerstone of the appellant's defence to the
respondent's unfair dismissals application.

28. In the circumstances, it is not evident from the decision of the labour court of the 22^ndNovember, 2017 as to how the jurisprudence aforesaid in respect of waiver provisions could be deemed to appropriately and comprehensively address the arguments raised by both parties as to the limited (from the respondent's point of view) or unlimited (from the appellant's point of view) application of the exclusion comprised in s.2 (2)(b).

29. Given that the appellants were relying upon a statutory exclusion
provision in s.2 (2)(b); the limited jurisprudence on the application of waiver provisions in a contract which did not deal with in any manner whatsoever with the statutory exclusion provision of s.2 (2)(b) are not, on a stand alone basis, which was the position in the labour court' s finding of the 22^ndNovember, 2017, without further deliberation or comment as to the implications of s.2 (2)(b) capable of comprising a correct application of the law.

Conclusion

30. For the reasons above, I cannot be satisfied that the correct
principles of law were applied in the absence of:-
- 1. an engagement with or consideration of the impact of s.2 (2)(b)
  on the circumstances before the labour court;
  
  2. some weighing in the balance of the provisions of s.2 (2)(b);
  
  3. an explanation of the perceived difference between exclusion
  and waiver identified by the labour court in it's decision (see
  para 19 and 20 (3) hereof) and why notwithstanding such
  difference the jurisprudence in respect of waiver was
  sufficient to address the critical/central issue between the parties.
In these circumstances, I am satisfied that it is appropriate to remit the
matter to the labour court for reconsideration. "

Summary of the Respondent’s arguments to the Labour Court on the High Court Decision

Mr Tom Mallon, B.L., instructed by Mr Liam Riordan Solicitor, Mason Hayes & Curran Solicitors, on behalf of the Respondent, accepted that the Complainant’s status in the period from August 2013 and 7^thOctober 2015 was as a permanent employee in the sense that she was not employed for a fixed term. He stated that it was accepted by the Respondent that had her employment not been renewed at the time of her signing the fixed term contract she might well have had a right to make a claim under the Act. However, he said that the Complainant had abandoned her permanent status by accepting and signing a fixed term contract on 22^ndOctober 2015, which was retrospective to 8^thOctober 2016.

According to Mr Mallon, O’Regan J held that the Labour Court had applied the jurisprudence in relation to waiver but did not in fact address the core meaning and effect of Section 2(2)(b) of the Act. He stated that O’Regan J recognised that s. 2(2)(b) of the Act was the cornerstone of the Respondent’s defence. He submitted, however, that it was not evident to the Judge how the Labour Court had decided that the jurisprudence as expounded inSunday Newspapers -v- Kinsella & Bradley[2008] 19 ELR 53 andHurley -v- Royal Yacht Club[1997] ELR 225in relation to waiver could be deemed to be appropriate nor had this Court comprehensively addressed the arguments raised in relation to the application of s.2(2)(b) of the Act. He said that the Judge, at paragraph 29 of her Judgment, made it clear that where the Respondent were relying upon the statutory exclusion provision set out in s.2(2)(b) the Labour Court’s reliance on the limited jurisprudence on the application of a waiver, which did not deal with the statutory exclusion, was not capable of comprising a correct application of the law.

Mr Mallon submitted that the core issue in this case is the meaning and effect of the exclusionary clause contained in the signed fixed term contract concluded in October 2015 and whether or not it was enforceable.

He submitted where an employee is denied a statutory right by virtue of being excluded by the provisions of the Act itself then there can be no obligation on an employer, such as in the instant case, to bring that to the attention of the employee or the perspective employee. Furthermore, he contended that the Labour Court should have no regard to the status of the employee, whether permanent or otherwise, in determining whether or not an exclusion clause is validly drafted.

On that basis Mr Mallon contended that the Labour Court should reject the Complainant’s appeal of the Adjudication Officer’s Decision and determine that the Adjudication Officer was correct in her decision.

Summary of the Complainant’s arguments to the Court on the High Court Decision

Mr Padraic Lyons, B.L. instructed by Mr Emmet Whelan, Solicitor, Byrne Wallace Solicitors on behalf of the Complainant, submitted that O'Regan J did not find that there had been any error of law on the part of the Labour Court. She simply determined that the High Court could not be satisfied that the correct principles of law had been applied in the absence of further reasoning in respect of the three issues identified at paragraph 30 of the judgment of the High Court and remitted the matter back for reconsideration by the Labour Court.

Mr Lyons addressed the three identified issues.

(1) "An engagement with or consideration of the impact of Section 2(2)(b) on the circumstances before the Labour Court"
- Mr Lyons submitted that the circumstances before giving rise to the instant case renders s.2(2)(b) inapplicable and ought not be used for the purpose of stripping the Complainant of rights which she had already acquired under the Act. Insofar as it purports to do so, any such agreement is in breach of s.13 of the Act and is an impermissible abuse of the statutory provision contained at section 2(2)(b).

- (2) "Some weighing in the balance of the provisions of Section 2(2)(b)"

Mr Lyons submitted that the provisions of s.2(2)(b) were not satisfied in this case and cannot be relied upon by the Respondent. He said that the fixed term-contract signed by the Complainant on 22nd October 2015 was not, when properly construed, a contract of the kind provided for and contemplated by s.2(2)(b) of the Act. The contract was stated to be for a fixed term. However, at the same time, it envisaged the continuation of the Complainant’s service in nominated circumstances when it stated the following: -

- "The temporary contract may be renewed foracontinued period in the event that the allocated hoursasspecified above continue to be available and the demand for these subjects continues".

Secondly, Mr Lyons pointed to the subjects taught by the Complainant, English and Religion and concurred with the Court’s finding that “it was within the bounds of possibility that the demand for such subjects was likely to continue”.Mr Lyons stated that this was not a situation where there was work for a specific period of time only, but a situation where there was a continuing need for a teacher in the School. He submitted, therefore, that, self-evidently, the Complainant’s dismissal did not consist only of the expiry of the term without its being renewed under the same contract.

Thirdly, Mr Lyons submitted that s. 2(2)(b) states that the Act does not
apply in relation to a"dismissal where the employment was underacontract of
employment forafixed-term".He said that the Complainant’semployment in this case was under a permanent contract of employment between August 2013 and October 2015, as confirmed by the Respondent.

Fourthly, Mr Lyons pointed out that the fixed term contract in question was introducedex post factoin most unusual and legally unorthodox circumstances and without informed consent.

- (3) "An explanation of the perceived difference between exclusion and waiver identified by the Labour Court in its decision (see paragraph 19 and 20(3) hereof) and why, notwithstanding such difference, the jurisprudence in respect of waiver was sufficient to address the critical central issue between the parties"

Mr Lyons maintained that the Court was correct to state that the issue in the case could more properly be characterised as an exclusionary provision rather than a waiver. However, he contended that s.2(2)(b) was not properly utilised in this case. He argued that the purported s.2(2)(b) exclusion clause was not in truth to exclude or prevent the Complainant from acquiring rights under the Act - for that is something which she had already achieved - but rather to take away those rights which she already enjoyed. In this case, the legal event which the contract sought to exclude had already taken place. In this regard, the relevant provision of the fixed term contract was instead a purported waiver of an acquired right.

Mr Lyons referred to theHurley v Royal Yacht Clubcase whereJudge Buckley held that an employee could enter into a binding compromise agreement, provided that he or she did so on the basis of informed consent. The Court reasoned as follows:-

- "I amsatisfied that the applicant was entitled to be advised of his entitlements under the employment protection legislation and that any agreement or compromise should have listed the various Acts which were applicable, or at least made it clear that they had been taken into account by the applicant. Iamalso satisfied that the applicant should have been advised in writing that he should take appropriate adviceasto his rights, which presumably in his case would have been legal advice. In the absence of such advice I find the agreement to be void."

He said that the fixed term contract relied upon by the Respondent in this case, hadin substancethe same consequence and effect as the compromise agreement referred to by Judge Buckley in theHurleycase. The fixed term contract and the compromise agreement are both contracts between parties that include a clause that waives an acquired right. Consequently, it is entirely appropriate that the principles applicable to waiver as identified inHurleyare to be applied with equal force to the Complainant and the circumstances in which she came to sign the fixed term contract. Mr Lyons surmised therefore that it necessarily follows that the loss of those rights could only be achieved on an informed and appropriately advised basis. Mr Lyons contended that the fixed term contract was entered into without the benefit of any independent advice; was executed without any opportunity being afforded to the Complainant for such advice to be taken and was executed in hurried circumstances, where the Complainant had never previously seen the document and was not even given an opportunity to examine its contents.

In conclusion, he contended that the jurisprudence applicable to waiver is directly applicable to the fact of the Complainant's case and submitted that this was dispositive of the issue.

In conclusion Mr Lyons submitted that as a matter of law and fact the Respondent was precluded from relying upon s.2(2)(b) of the Act. He also submitted that the appropriate principles of law were applied by the Labour Court in this case and therefore sought to have its original Determination upheld.

Findings of the Court

Before considering in detail the issues remitted by the High Court for further consideration, it is appropriate to state that this Court fully accepts that, as a general principle, where the conditions specified therein are fulfilled s.2(2)(b) of the Act operates so as to exclude the application of the Act to a dismissal that consists only of the expiry of a fixed -term or fixed purpose contract without its renewal. However, the facts of the instant case are substantially and materially different to those normally encountered in the generality of cases in which s.2(2)(b) are relied upon as a defence.

Consequently, the decision that follows is based on the peculiar, and in many respect unique, factual matrix of this case, as admitted or as found by the Court.

The High Court directed the Labour Court to reconsider three specific principles of law in the light of its findings in its judgment. The Court will now address these issues: -

- 1. an engagement with or consideration of the impact of s.2 (2)(b) on the circumstances before the labour court;

Section 2(2)(b) of the Act provides that the protection of the Act does not apply when a dismissal arises from the expiry of a contract’s term or the specified purpose is completed.

- "dismissal where the employment was under a contract of employment for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment) and the dismissal consisted only of the expiry of the term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid."

In this case the Respondent sought to rely on the exclusion contained in s.2(2)(b) of the Act which permits the non-application of the protection of the Act to fixed-term contracts which have been executed strictly in accordance with four clear criteria set out in s.2(2)(b), namely: -

a) The contract must be in writing;
b) The contract must be signed by or on behalf of the employer;
c) The contract must be signed by the employee;
d) The contract must provide that the Act shall not apply to a dismissal consisting only of the expiry of the fixed-term or the cesser of the specified purpose.

Section 2(2)(b) essentially allows an employee who wishes to accept a temporary employment arrangement from an employer to waive his or her rights to protection under the Act. In a situation where an employee is giving up what would otherwise be very valuable employment protection rights it is essential that the agreement clearly stipulates in writing what is being waived and that the parties indicate, through their signature, express agreement to it. These conditions must therefore be fully and completely satisfied.

It is clear on the evidence adduced that at the time the Complainant signed the fixed-term contract in issue she was already employed by the Respondent on a permanent contract of employment and she enjoyed the full protection of the Act against unfair dismissal. The purported effect of the impugned contract was to alter her tenure in employment from permanency to a fixed term and to extinguish her acquired entitlement to avail of the protection that the Act provides.

Furthermore, for the reasons outlined in Determination UDD1752, the Court is satisfied that the Complainant was not aware that she was signing away her protection rights under the Act in October 2015. Nor was she cosignant that her employment status was changing from that of a permanent employee to that of a temporary fixed-term employee. Consequently, it was clear to the Court that the conditions necessary to render s.2(2)(b) of the Act effective were not satisfied. On that basis the exclusion which permits the non-application of the Act did not apply to the termination of the Complainant’s employment.

The Court held that a fixed-term contract is one that is determined by an objective condition which does not require the intervention of either party to the contractNerney v Thomas Crosbie Holdings Limited[2013] 24 ELR 238. At common law the termination of such a contract is not a dismissal as it is brought to an end by its own terms rather than at the instigation of the employer. However, the Act deems the expiry of a fixed-term contract, without its renewal, to be a dismissal for the purpose of the Act.

- 2. some weighing in the balance of the provisions of s.2 (2)(b);

In order for s. 2(2)(b) of the Act to apply the contract must be abona fidefixed term contract.“A contract is for a fixed term when at the time it is entered into the date of the commencement and of termination respectively are capable of being ascertained”Redmond on Dismissal Law p. 533.

The question arises in this case, whether or not the contract was a fixed term contract as envisaged by s. 2(2)(b) of the Act. The contract was stated on its face to be for a fixed term however at the same time, it envisaged the continuation of the Complainant’s service in nominated circumstances when it stated the following: -

- "The temporary contract may be renewed for acontinued period in the event that the allocated hours as specified above continue to be available and the demand for these subjects continues".

In order for a dismissal to be taken outside the ambit of the Act the fixed term contract must satisfy the four conditions contained in s.2(2)(b) (mentioned above). These conditions must be completely satisfied,Sheehan v Dublin Tribune Ltd[1992] E.L.R. 239 andO’Connor v Kilnamanagh Family Recreation Centre LtdUD 1102/1993.

Based on the Court’s findings in Determination UDD1752, the Court was not satisfied that the fixed term contract presented to the Complainant for signing in October 2015 was abona fidecontract as the date of commencement had already passed and the date of termination was not easily capable of being ascertained as it envisaged its continuation into another school year.

The Respondent put forward a number of reasons why the fixed term contract was a“far superior than her previous volatile contract, as it was likely to lead to a permanent contract; was paid on a Department of Education & Skills Teachers salary scale; entitled her to membership of the public sector superannuation scheme; entitled her to be paid during the summer months and posed no threat of redundancy.”In fact, however, the contract was not renewed and the Complainant lost her job, so it was clearly a more volatile contract than the permanent contract she was on.

Furthermore, the Court is not satisfied that such an agreement was entered into on the basis of informed consent nor was it satisfied, as previously stated, that she was aware that by signing the contract in October 2015 she was relinquishing the protection she had already acquired under the Act. The Court found as follows: -

- “The Court cannot envisage any circumstances where the Complainant could have intended to terminate her permanent employment in favour of a temporary one. The import of the document with which she was presented and its implications for her then current circumstances were not explained to her. Nor was she advised to obtain independent advice before signing the document. The Court is of the view that the provision of a fixed-term contract in those circumstances is ineffective. In circumstances where the permanent contract and the fixed-term contract were inconsistent with each other, the Court is of the view that the earlier contract should prevail.
  
  Arising from these findings, the Court is not satisfied that the fixed-term contract which contained the exclusionary provision can be relied upon by the Respondent to preclude the application of the Acts to the Complainant’s dismissal.”

Section 13 of the Act provides that a provision in an agreement whether a contract of employment or not, shall be void insofar as it purports to exclude or limit the application of, or is inconsistent with, any provision of the Act.

As the Court has found that the permanent contract should prevail (over the fixed term contract), it found that the exclusion clause contained in s.2(2)(b) has no application.

In such circumstances, the Court finds that in seeking agreement from the Complainant to exclude or limit the application of the Act, such an agreement was in breach of s.13 of the Act and was therefore void.

- 3. an explanation of the perceived difference between exclusion
  and waiver identified by the labour court in its decision (see
  para 19 and 20 (3) hereof) and why notwithstanding such
  difference the jurisprudence in respect of waiver was
  sufficient to address the critical/central issue between the
  parties.

The Court will now address the third principle of law identified by the High Court, namely, the Court’s understanding of the difference between an exclusion clause or provision and a waiver. An exclusion clause or an exclusionary provision refers to a provision in a contract or a statute which excludes the application of the contract or the statute in certain circumstances or, in the case of a statute, to certain categories of persons. A waiver, on the other hand, refers to an agreement or undertaking given by a person not to pursue or assert a legal right that he or she has.

In the context of the Unfair Dismissals Act, section 2 excludes the application of the Act to certain classes of person and to certain categories of employment contract. For example, s.2(1) of the Act excludes a number of types of employee, such as those above retirement age, FAS trainees, those employed by a close relative etc. Subsection (2) of s.2 excludes a number of types of employment contract from the scope of the Act. This includes a contract for a fixed term or purpose where, amongst other things, the contract contains an exclusion clause, that is to say, a clause that expressly states that the Act will not apply to a dismissal consisting of the expiry of the contract without its renewal. The provision at s.2(2) of the Act is properly referred to as an exclusionary provision and a clause in a contract of employment is properly referred to as an exclusion clause. (see Redmond on Dismissal Law, p 533).

A waiver, in an employment context usually arises where an employee undertakes not to pursue a claim which they would otherwise be entitled to pursue in consideration of some payment of other concession made by the employer. Typically, this arises where an employee receives a severance payment and undertakes not to pursue a claim against the employer arising from the employer. This is what was in issue inSunday Newspapers v Kinsella. Here the defendant had signed a discharge document undertaking not to pursue any claim against the employer in return for an enhanced redundancy payment. The High Court held that he was bound by that undertaking.

The essential difference between a waiver and an exclusion is that the former arises from a voluntary act on the part of the party and the extent and nature of the waiver is determined by the parties. An exclusion is specific in nature and in the case of the Unfair Dismissals Act, it arises from the statute itself.

An “exclusion clause” is defined in Murdoch’s Dictionary of Irish Law as “a clause in a contract which excludes or modifies an obligation, whether primary, general secondary or anticipatory secondary, that would otherwise arise under the contract by implication of law:Photo Productions Ltd v Securicor Transport Ltd[1980] Ac 827.”

“Waiver” is defined as “The relinquishing, renouncing, disclaiming, forbearance or abandonment of a claim to a right or benefit. A waiver may be expressed or implied. Waiver of a contractual right does not have to be evidenced in writing because, the rights continues, although it may be unenforceable, unlike the case of a variation (qv) where the contractual rights is extinguished. Waiver may have the effect of affecting the range of remedies available to the party forbearing:Car & General Insurance Corporation v Munden[1936] IR 584. It is not an act of waiver to intimate that one may be prepared to waive some contractual right in certain circumstances:SA. Fonderes Lion MV v International Factors (Ireland) Ltd[1984] ILRM 66.”

In its Determination UDD1752, the Court held that s.2(2)(b) should more properly be seen as an exclusionary provision which, subject to the conditions provided therein being complied with, takes a dismissal to which it applies outside the scope of the Act altogether. The Court made this statement in the context where both parties before the Labour Court referred to section 2(2)(b) of the Act as containing a ‘wavier’ rather than an “exclusion”.

In its Determination, the Court stated that it“does accept that the jurisprudence that generally governs the execution of waiver clauses should be applied to the circumstances in which the Complainant came to sign that fixed-term contract on 22nd October 2015.”The Court came to this conclusion on the basis that the Complainant had not entered into such an agreement on the basis of informed consent, she was not aware that by signing it she was relinquishing her rights under the Act, she was required to do so in hurried circumstances and was not advised to obtain independent advice before signing the document.

Conclusion

The Court has addressed the three principles of law identified by the High Court for reconsideration. Having done so, and for the reasons set out herein, the Court is satisfied that s.2(2)(b) of the Act does not apply and the fixed term contract of October 2015 was in breach of s.13 of the Act and was therefore void. It follows that the exclusion which permits the non-application of the Act did not apply to the termination of the Complainant’s employment.

In those circumstances, the Court finds that the Complainant was unfairly dismissed when her contract was not renewed on 1st September 2016.

Determination

Therefore, the Court makes a final Determination that the Complainant was unfairly dismissed by the Respondent and hereby affirms its decision in Determination UDD1752: -

The Court orders the Respondent to re-engage the Complainant in the school from the commencement of the 2018/2019 school year and bepaid on the Teacher’s Common Basic Scale without loss of her prior service.

Accordingly, the appeal is allowed. The decision of the Adjudication Officer is overturned.

The Court so Determines.

Signed on behalf of the Labour Court

Caroline Jenkinson
29th June 2018______________________
SCDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.