Complainant

Respondent

Anonymised Parties

A Primary School Teacher

A Government Department

Representatives

Irish National Teachers Organisation

Department Officials

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994

CA-00028555-001

20/05/2019

The complaint was submitted to the Workplace Relations Commission on 20th May 2019 and relates to a period of Health and Safety Leave which was denied to the complainant on 14th November 2018. The respondent in the within complaint is a Government Department. A further complaint was also submitted on the same date and based on the same set of facts. (ADJ000-21750 refers). In that complaint the Board of Management of the Primary School was named as the respondent in relation to the complainant’s unsuccessful application for Health and Safety Leave. A separate decision will issue in relation to that complaint.

The Department stated that it is not the correct respondent for the purposes of the within complaint. The Department contends that a decision to refuse Health and Safety Leave to the complainant was made independently of the Minister or the Department named in the complaint.

The Department stated that the issues raised in the complaint related to the complainant’s employer and that for the purposes of this complaint, the Department is not the complainant’s employer. The Department stated while it performs the role of Paymaster, it is not the correct respondent and should be removed from the within proceedings.

The Department’s representatives cited the Supreme Court case in Minister for Education and Skills & anor v Boyle and anor, [2018] IESC 52 at Paragraph 9.5 of the judgement which states:

“It also seems to me to be necessary to pay particular record to what this Court decided in O’Keeffe v Hickey…..the reasoning of this Court in that case was clear. It was accepted that the contract….in question was with the management of the relevant school rather than with the Minister…. I do not see any reason to depart from the rationale of O’Keeffe v Hickey……. O’Keeffe v Hickey is clear and recent authority for the proposition that, in the ordinary way, it is the school management rather than the Minister who is taken to be the other party to a teacher’s contract of employment.”

The Department’s representative stated that in line with the provisions of the Education Act, 1998, the Board of Management assumes the responsibility of managing the school and in line with the provisions of the updated Governance Manual for Primary Schools 2019-2023 is “accountable to the Patron and the Minister. The Principal is responsible for the day-to-day management of the school, including guidance and direction of the teachers and other staff of the school and is accountable to the Board for that management”.

As the Board of Management is tasked with the day to day running of the school, and as the Department had no involvement in the refusal of Health and Safety Leave to the complainant, the Department contends that it is the incorrect respondent to this complaint.

The complainant’s representative stated that it was the Occupational Health Specialists engaged by the Department that refused the complainant’s application for Health and Safety Leave. The complainant stated that in those circumstances the Department has a level of responsibility in relation to the complaint.

I have considered the submissions of both parties to this complaint. It is well established that the Board of Management of a School is deemed to be the employer in relation to issues such as this. I do not accept the arguments of the Trade Union that it was the Department that refused the Health and Safety leave to the complainant through the actions of its Occupational Health Specialists Assessment. (OHS) The OHS is independent of the Department in its decision making. Accordingly, I find that the Department is not the complainant’s employer for the purposes of this complaint and is incorrectly named as a respondent to the within complaint.

Having considered the submissions of both parties, I find that the complaint is not well founded.