LCR22107

• Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendations in relation to the dispute. I now make the following recommendations
  
  1. In view of the very obvious local peculiarities and sensitivities in this case and the ultimate need for the parties to all work together amicably, going forward in a school setting, I strongly recommend that the Parties once again seek the services of a skilled HR / IR Facilitator to engage with all concerned to achieve an agreed satisfactory outcome.
  2. However, to avoid all doubt on some key matters, the Complainant is to be regarded as being at Position Two in the Seniority listings in School A both at present and especially inn 2017 when the School A 100% SNA post was in question. The 100% post in 2017 in School A should have goner to the Complainant.
  3. I base this Recommendation in a clear reading of the various Dept of Ed and S circulars (beginning at 58/2006, 59/2006, 37/2013, 44/2014 and forward) presented by the Complainant's Representatives. the Circulars are not ambiguous, and the meanings are clear cut as regards this case. I noted the cited correspondence from managers in the E & T Board and from the Dept of Ed & S in this connection. On any standard of probability and basic interpretation of Circular letters, the evidence presented in support of the complainant was compelling.
  4. The Complainant be awarded the short fall in salary that arose on a 50% post when a 100% post would have been correct for the school term 2017/2018 and any shortfall that may have been also followed for the School term 2018/2019."

This is an appeal on behalf of Kildare and Wicklow Education and Training Board (‘KWETB’) from a Recommendation of an Adjudication Officer (ADJ-00016706, dated 14 May 2019) under section 13 of the Industrial Relations Act 1969. KWETB’s Notice of Appeal was received by the Court on 24 June 2019. The Court heard the appeal on 20 September 2019 in Dublin.

The Worker who referred this dispute has been employed by KWETB as Special Needs Assistant (‘SNA’) since February 2014. An SNA – pursuant to her/his contract of employment – may be assigned by the employing Education and Training Board to any school or college under that Board’s remit, as circumstances require. The Worker was initially assigned to a named school with KWETB’s remit on a 50% whole time basis. That post ceased to exist due to a fall in SNA allocation to that particular school. Subsequently, the Worker was transferred to a second named school within KWETB’s remit on a whole-time basis for the school year September 2016 to August 2017.

The issues that give rise to the within dispute date from June 2017 when it became apparent that the SNA allocation of the school in question would reduce by 0.5 whole time equivalent (‘WTE’). Prior to the planned reduction in allocation coming into effect, there were three WTE SNAs assigned to that school. In order to effect the planned reduction in hours available, one of the two least senior SNAs in the school – one of which was the Worker – were required to cease working in the school on a full-time basis. Both the Worker and SNA X were approached about moving to another KWETB school or reducing and/or combining hours between schools in order to make up whole-time hours. The issue of whether the Worker or SNA X had seniority vis-�-vis the other then arose.

It is necessary to briefly recount SNA X’s employment history in the school in question very briefly to put this dispute in context. SNA X has been employed in the school since 2007. For a period of five years (i.e. up until the end of school year 2011-12), SNA X worked on a full-time basis as an SNA. Between 2012 and 2014, she remained in the school but principally in an administrative role. During this two-year period, she contracted to work one hour per week as an SNA but also did substitute SNA work as and when required to do so. Between 2014 and 2016, SNA X did not have any contracted SNA hours in the school; she was contracted to perform administrative duties but also continued to do substitute SNA work as required.

SNA X raised the issue of her seniority with the CEO of KWETB in the summer of 2017 and escalated the matter to a formal grievance in March 2018. SNA X was retained in her existing school on a full-time basis for the school year 2017-18 pending a detailed consideration of the issues she had raised with KWETB arising from the history of her employment relationship with the Board and the school.

The Worker, meanwhile, was offered various options: move school and take up a full-time post elsewhere or combine her 0.5 WTE hours in her existing school with hours in another location. The Worker opted to reduce her hours to 0.5 WTE in the school but not to take up any additional hours elsewhere. The Worker subsequently referred a dispute under section 13 of the Industrial Relations Act 1969 to the Workplace Relations Commission. That dispute culminated in a Recommendation bearing reference number ADJ-00012301 and dated 24 April 2018. One aspect of the Recommendation that issued on that occasion was that the parties to the dispute should attempt to mediate. Mr Pat Brady of Workplace Solutions was the agreed mediator appointed. However, that process was unsuccessful. Thereafter, the Worker availed herself of stage 3 of the nationally agreed Grievance Procedure. A grievance hearing was conducted by the then newly-appointed CEO of KWETB (Dr Deirdre Keyes) in October 2018. The outcome was that the Worker was confirmed as the least senior SNA in her current school. The Worker did not progress her grievance to stage 4 but instead referred the within dispute to the Workplace Relations Commission.

Submissions

It is submitted on behalf of the Worker that she has longer continuous service as an SNA than SNA X and therefore it was SNA X’s hours that should have been reduced in the school year 2017-18, not the Worker’s. The Worker’s Representative – Ms Kirsty Kavanagh – placed considerable emphasis on the application of a number of Department of Education and Skills Circulars in support of her client’s submission.

It is submitted on behalf of KWETB that the departmental circulars relied on by the Worker have been misapplied and misconstrued. KWETB submits that SNA’s service from 2007 to 2014 is reckonable for the purposes of seniority along with her service from 2017 to date. However, it accepts that SNA X’s service between 2014 and 2016 should be discounted in as during that period the SNA allocation to the school had dropped. However, as SNA X was not formally removed from the SNA system at that time – and in fact continued to supply substitution hours – her continuity of service as an SNA was deemed not to have been broken. This was a key outcome of the grievance process taken by SNA X in 2018.

Discussion and Decision

This is a long-running dispute that raises complex issues which are not capable of resolution by reference only to departmental circulars. Both Parties made very comprehensive written and verbal submissions to the Court, supported in both cases by extensive documentation. The Representatives on both sides are to be commended for their considerable efforts to assist the Court in arriving at an understanding of the issues at play in the dispute.

The Court recognises that SNA X (who is not actually a party to this dispute, of course, but the outcome of whose dealings with her employer, KWETB, have impacted on the Worker whose dispute it is) has given long service to the school, in varying capacities, to which she has been assigned by KWETB. SNA X progressed her own grievance through the established procedures and received an outcome that is very favourable to her.

By implication, however, the outcome in SNA X’s case has had knock-on implications for the Worker. While the Court is very strongly of the view that all concerned in KWETB – and in particular the CEO, Dr Keyes, who was tasked with dealing with both the Worker’s and SNA X’s respective grievances – acted at all times with total integrity in respect of the matters in dispute here, the Court also takes the view that a collateral unfairness has been visited on the Worker. On the other hand, it appears to the Court that the Worker did not help her case in 2017 when she opted to reduce her hours by choosing to work on a 50% only basis in her current school and declining KWETB’s offer to change to another school on a 100% basis or combine hours in two schools.

In all the circumstances of the case, therefore, the Court’s decision is that both SNA X and the Worker should be deemed to be equal in seniority going forward. The Court further decides that there is no basis for the award made by the Adjudication Officer in respect of the Worker’s shortfall in salary that resulted from her decision to work only 50% of the hours potentially available to her from the commencement of school year 2017-18 forward. However, the Court does recommend payment of compensation payment of €7,500.00 to the Worker in respect of the collateral unfairness occasioned to her in the course of the history of this dispute.

The Court so decides.

Signed on behalf of the Labour Court



Alan Haugh
TH______________________
27 September 2019Deputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.