Complainant

Respondent

Anonymised Parties

A Special Needs Assistant

A National School

Representatives

Sean Carabini of Forsa Head Office

Liam Riordan, Solicitor of Mason, Hayes and Curran Solicitors.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00021213-001

17/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00021213-003

17/08/2018

The issues in contention concern the alleged Unfair Dismissal of a Special Needs Assistant from a National School.

1:1       CA-00002113-001- Unfair Dismissals Act,1977 complaint.

The Complainant began employment as a Special Needs Assistant (hereafter called a SNA) in the Respondent School in April 2014. The School is a Special Category School catering for children with special needs. Initially the Complainant worked as a substitute SNA but in 2016 was employed on a full-time basis. No Contract of Employment was signed. She was told by the then Principal, now retired, that her engagement was on a “Rolling Year to Year basis”. The clear impression was given to her by the then Principal that she could expect her engagement with the school to continue from year to year.

In June 2017 the Complainant was given a fixed term/specified purpose contract (to cover for a career break of a colleague) for the school term 2017/2018. When this expired in August 2018 the Complainant was required to compete in an Open Public Competitor for a permanent SNA position. She was unsuccessful and was placed on a Panel of Applicants that could be used for Substitutions during the 2018/2019 School Year.

The Complainants Union, FORSA, made the following points.

“Rolling” Contracts of Employment do not exist in the SNA Sector. The situation governing the appointments of SNA personnel is now governed by Department of Education and Skills Circular Letter 0034/2018 dated the 17th May 2018. Section 17 applies, particularly the reference to Career Break vacancies in this case.

Accordingly, the use of the Fixed Term Contract for the Complainant was to say the least unusual and the subsequent ending of the Complainants Employment on the expiry of the fixed terms is in breach of the Terms of Circular 34/2018 and is automatically an Unfair dismissal.

In addition, the Complainant sought to progress a Grievance regarding the Dismissal under the terms of Circular Letter 0072/2011 – Grievance Procedures for SNA’s in recognised Primary and Post Primary Schools.

The Respondent School refused to entertain the Grievance as it felt it was excluded by the strict Terms of the Circular letter.

FORSA maintained that the Respondent had fundamentally misunderstood the terms of the Grievance Circular and by doing so had denied the Complainant fair procedures – a requirement in any Unfair Dismissals action.

Accordingly, the dismissal of the Complainant is completely unfair in terms of agreed Department of Education and Skills Agreements and normal Industrial Relations Procedures

1: 2         CA-00002113-002- Minimum Notice & Terms of Employment Act, 1973 claim

As an employee of some years standing the Complainant should have been paid a Minimum Notice payment on the termination of her employment.

2:1         CA-00002113-001- Unfair Dismissals Act,1977 complaint

The Complainant had a Substitute History with the School going back to the 2014/2015 School Year.

She was offered a fixed Term (specified purpose) contract for one year to cover the School Year 2017/2018. This was to cover the Career Break of a colleague.

The Contract had a clearly identified end date in August 2018. The Fixed Term Contract came to its natural end and there can be no suggestion of an Unfair Dismissal.

The Appeal Procedures referred to specifically exclude issues of the nature raised in the Complainants Grievance letter.

The Appointment of SNA staff is governed by Department of Education and Skills Governance Manual (Appendix H) for Schools. The filling of posts for 2018/2019 was governed by this Procedure which the School followed exactly. The Complainant was unsuccessful in terms of her placing on the Panel, formed post interviews, for the two Permanent vacancies but remains on the panel for substitute vacancies that may arise.

2:.2         CA-00002113-002- Minimum Notice & Terms of Employment Act, 1973 complaint

This claim is completely misconceived as no Unfair Dismissal took palce and the Complainant was fully on notice that her employment was ending on the 31st August 2018.

3:1        The Applicable Law.

The Law here is the Unfair Dismissals Act,1977 and SI 146 of 2000 – Statutory Code of Practice on Grievance and Disciplinary Procedures.

There is also a considerable body of legal precedents in this area together with the overall requirement that Natural Justice is observed at all times.

In the landmark case of Frizelle v New Ross Credit Union Ltd, [1997] IEHC Flood J. stated that

“Put very simply, principles of natural justice must be unequivocally applied.”

However, all cases must be seen in the light of their own facts and evidence.

3:2     Consideration of the evidence.

The employment of SNA staff is now governed by Circular Letter 0034/2018.

Section 17, quoted below, has particular reference to this case.

17. Where a school/ETB has an additional allocation of SNA hours/posts (e.g.

an additional allocation of SNA hours/posts or an SNA has left the

employment) then that additional allocation of hours/posts must be

offered to an existing part‐time SNAs in that school, in order of seniority,

before the employer has recourse to these arrangements. This means that

before an employer opts to recruit a further person as an SNA(s), they must

ensure that all existing part‐time SNAs in their employment, in order of

seniority, have been offered a full‐time position in the school or, in the case

of ETBs, a full‐time position in a school within the ETB scheme. (At the sole

discretion of the school/ETB and in line with the specific allocation of the

NCSE, where additional hours arise because of an SNA taking up a Career

Break those additional hours may be offered to existing part‐time SNAs in

that school, in order of seniority. A separate contract for the additional

hours should be issued to any SNA receiving such hours (Refer to DES

Circular 22/2012, Section 8.2). Any such offer will be on the understanding

that the part‐time SNA resumes the part‐time hours when the Career Break

SNA resumes duty. Service in a substitute capacity for additional hours will

not count for redundancy purposes.)

(Underlining by the Adjudication Officer).

The issuing of the Fixed Term contract for 2017/2018 had been a decision of a now retired Principal. There was discussion at the oral Hearing as to whether or not the then Principal had acted “Ultra vires” in issuing this contract (Fixed Term/Specified Purpose) vis a via Circular Letter 34/2018 which was then in force. It certainly was a point that needed clarification.

I considered requesting the former Principal, to give oral evidence, but decided against it as the key issue is the correct interpretation of 34/2018. This can be done by current staff. Likewise, the decision to utilise the format of recruitment for the 2018/2019 permanent SNA posts was the decision of the current Respondent Management.

It was a pity that the Grievance Procedure from Circular 72/2011 had not been utilised as it might have clarified a lot of issues at an earlier date. I did not accept the view that the case here was not appropriate for consideration under Circular 72/2011. At the very least it merited a face to face discussion between the parties, with representation offered to the Complainant. This apparently had not happened, a telephone call from the Principal had been the form of communication to the Complainant in this regard.

3:3       Conclusions

The key issue in this case is the correct Interpretations of Circular Letters 34/2018 and 72/2011.

It is my belief that the Complainant has a very probable and legally stateable case that she was disadvantaged in the Respondent interpretations of both Circulars and accordingly, as this claim is under the Unfair Dismissals Act,1977, I must find that she was Unfairly Dismissed.

3:4       Redress and Clarifications of the Redress.

Section 7 of the Unfair Dismissals Act ,1977 offers three possibilities of Redress - Reengagement, Reinstatement or where economic loss has occurred Compensation that is “just and equitable having considered all the circumstances.”

Accordingly, in this case I have decided that the best course of action is to award Reinstatement of the Complainant on the 31st August 2018 -the date the fixed term contract expired.

For clarification purposes I also make the following points as part of the Reinstatement Order.

The appointment to one of the then advertised permanent SNA posts 2018/2019 to be considered retrospectively under the terms of Circular 34/2018 and Section 17 in particular.

There is no guarantee of a new appointment here but if a retrospective appointment has to be made following a further interpretation of Circular 34/2018 and this gives rise to a temporary “over quota or special supernumerary position” this is an issue and cost that the Respondent must carry.

The Respondent is in an almost unique position that as a Special Needs school they employ over 30 SNAs and one additional would not seem to be a particular difficulty.

A Grievance or dispute from either Party in this matter to be resolved under the terms of Circular 72/2011.

An early meeting between FORSA and the Respondent to consider this Adjudication Decision will obviously be of immediate benefit to all parties.

3:5             CA-00002113-002- Minimum Notice & Terms of Employment Act, 1973 claim

As the finding is one of Unfair Dismissal an award of minimum notice must follow. In view of the service of the Complainant an award of two weeks’ pay which I took to be as the annual salary of (€25,265 /52) X 2 to equal €971.73.

The taxation of this sum to be considered in conjunction with the Revenue Commissioners.

Act

Complaint/Dispute Reference No.

Summary Decision/ Please refer to Section Three above for detailed reasoning.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00021213-001

The Dismissal is found to be Unfair.

Redress is deemed to be Reinstatement on the 31st August 2018.

Detailed clarifications of the Reinstatement Order were also applied.

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00021213-003

Minimum notice of € 971.73 is awarded.