Complainant

Respondent

Anonymised Parties

A Special Needs Assistant

A National School

Representatives

Fórsa

AJP McDonald Solicitors

Act

Complaint/Dispute Reference Nos.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00029350-001

28/06/2019

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

CA-00029350-002

28/06/2019

The following is a summary of the Complainant’s case.

CA-00029350-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969.

The Complainant was a Special Needs Assistant (SNA) employed in the Respondent since August 2015 until she was made redundant in March 2019. She claims that at the time of being made redundant, she had an ongoing grievance case referred into the Workplace Relations Commission (WRC). The Complainant said that the SNA grievance circular directs unresolved grievances to be heard at the WRC. She claims that the WRC ruled that the Respondent had failed to conclude the grievance procedure and directed them to do so. The Complainant claims that due to the stress of the ongoing grievance case, she remained absent from work on medical advice.

The Complainant said she was referred to the occupational physician service by her employer. She said that in a letter dated 23 October 2017, the occupational physician service wrote to the Respondent and stated that “… that it would be important that any workplace concerns, including reported allegations against [the Complainant], are investigated and addressed as a priority. I recommend that the employer engage with [the Complainant] in an attempt to address any work-related issues. [the Complainant] is, in my opinion, medically fit to participate in any such procedures.”

The Complainant said that on 25 October 2017, the occupational physician service wrote to the Respondent and stated that “[the Complainant] attended for assessment in [the occupational physician service] on 23rd October. I believe she remains medically unfit for work. I understand that she has some workplace concerns and I suggest that these are addressed as a priority. I tried to phone the school but there was no reply. I am happy to discuss this further so please do not hesitate to contact me if further information is required.”

The Complainant said that furthermore on 20 December 2017, the occupational physician service wrote to the Respondent and said, “I do believe she is medically fit to liaise with her employer in relation to any work-related matters.” And on the 5 March 2018, wrote, “[the Complainant] continues to report symptoms which she attributes to workplace concerns, I understand the details of her concerns are well known to you. I do believe that resolution of any perceived workplace related issues would be of benefit for her general wellbeing so I encourage her employer to address any such concerns as a matter of priority,” continuing to note “I believe [the Complainant] is medically fit to meet with her employer so that any work related issues can be addressed.”

The Complainant said that despite the occupational physician service highlighting on numerous occasions that her grievance was preventing her from returning to work, the school did not conclude it. It was only concluded as a result of the outcome of the referral of the grievance to the WRC. The Complainant said that had the case been concluded earlier, as per numerous recommendations from the occupational physician service, the Complainant would have been in a position to return to work earlier and would not have had to go on reduced pay.

The Complainant said that she was absent from 01/09/2017 to 04/09/2017 and from 07/09/2017 to 06/01/2019. She was on Temporary Rehabilitation Remuneration (TRR) rate of pay from 06/03/2018 to 07/01/2019. She said that had she been in a position to attend work during this time, she would have earned €14,196.97. However, as she was in receipt of social welfare illness benefits at this time, she instead earned €7,570 in social welfare illness benefit. The Complainant’s case is that had the school followed the medical advice of and concluded the case without the need for a WRC intervention to do so, she would not have suffered a financial loss.

The Complainant said in addition, the level of sick leave meant that she did not receive incremental credit during 2018. This would have increased her pay point by €2,040. She said she is seeking compensation to the tune of the amount lost for the failure of the school to conclude the grievance procedure at an earlier date.

The Complainant said that she made efforts to contact the school to organise a return along the lines of that recommended by the occupational physician service, the respondent’s own medical service. Ultimately, however, she was forced to come back to work without the issue being resolved because of the severe financial strain that the unresolved matter gave rise to.

CA-00029350-002 - Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

The Complainant claims that in February 2019 she was selected for redundancy. She was the only SNA employed in the school.

She said that section 4 of the Minimum Terms of Notice Act states:

“4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.”

The Complainant said that as she had less than 5 years’ experience, but more than two years’ experience with the school, she should have been given two weeks’ notice in accordance with Section 4(2)(b) of the Act and in accordance with the SNA contract of employment.

The Complainant said she was informed by her employer, on 19th February that she was to be made redundant. However, the school informed her that the notice period began on 15th February, 4 days before they informed her of the situation. The Complainant said that she was told that she was acting on the advice of the government Department as they are the paymaster for SNAs.

The Complainant raised the date of notice with the Department and she was unhappy with the response. She claims that the way the notice period is calculated has three consequential knock-on effects on her: a). She loses out on an additional 4 days of wages; b). she loses out on an additional 4 days of service towards her redundancy calculation, and c). She loses out on an additional 4 days of service towards her pension.

The Complainant said that the Respondent issued her with a cheque with what they believed was the net amount of the notice differential should have been. However, this has not been cashed as it was not issued via the SNA payroll in the Department, meaning that her official termination date remains 1 March rather than 5 March and she continues to lose out on the additional 4 days of service.

The Complainant has asked that the correct termination date, in accordance with the Act, be recorded on her records with the Department.

The following is a summary of the Respondent’s case.

CA-00029350-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

The Respondent is the Board of Management of a National School. The Complainant has been employed with the school as an SNA since August 2015. Her position was made redundant since March 2019. The Respondent said that in June 2017 the parents of a child made a number of complaints to the school Principal regarding the manner in which the Complainant discharged her duties. Despite there being no formal written complaint, the Principal felt it would be appropriate to advise the Complainant of the concerns mentioned to him. No further action was taken by the Principal. There was no disciplinary action. There was no sanction.

In September 2017 the same parents made another complaint about the Complainant. Again the Principal informed the Complainant and she went out on sick leave and remained on sick leave until January 2019.

The Complainant was unhappy with the allegations made and she demanded that the complaints be made in writing and investigated. The Respondent said that the parents was advised that should they want to make a complaint that it will need to be made in writing. The parents did not make any formal complaint and as far as the school was concerned there was no complaint before it to investigate and the Complainant had an unblemished record as far as it was concerned. The Complainant still maintained that she wanted the complaint dealt with and she was unhappy with how the Principal dealt with the matter. She lodged a grievance with the Respondent and the school Principal left the Respondent.

The Respondent advanced the grievance from stage 1 to stage 2 without satisfaction for the Complainant. The case went to the WRC and a recommendation was made that the final grievance by concluded with the issuing of a written decision of the investigator’s findings following his deliberations. The Respondent said that the WRC recommendation was founded on a technicality that the grievance procedure was not completed as it was not put in writing and it recommended that this be completed.

The Respondent said that the Complainant returned to work on 9 January 2019 and unfortunately her position was subsequently made redundant in March 2019 when the school was advised that it had lost its allocation of SNA hours.

The Respondent said that it dealt with the Complainant in an appropriate manner at all times throughout. It was the Respondent that suggested to the Complainant that she should pursue her case down the grievance procedure route. It had tried to have the matter resolved through the grievance procedure and was fully transparent from the very start.

The Respondent said that the Complainant went out on sick leave in early September 2017. She was paid as per the sick leave scheme and her rate of pay reduced in line with that scheme until she returned to work in January 2019. The Respondent said that the Complainant had sought that all this leave be categorised as “Administrative Leave” and alleged that the parent government Department said she should be placed on Administrative leave. The Respondent said that it contacted the Department seeking advice on the matter and it was told that her sick leave could not be treated as administrative leave.

The Respondent said that it had attended the previous WRC hearing regarding the dispute taken by the Complainant and followed the Adjudication Officer’s recommendation. It said the issue raised now, in particular her claim to financial loss, was known to her prior to the last WRC Hearing and now it finds itself again before the WRC, one year later, and claims that this is an abuse of process.

CA-00029350-002 - Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

In relation to the complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973, the Respondent said that the nature of the Complainant’s employment relationship is atypical, similar to that of a teacher, it is a tripartite arrangement involving the Complainant, the School and the Department. The Department is the paymaster and sets the rate of pay and terms of contracts of employment. As is the arrangement with teachers the Department has conceded that it is the employer for the purpose of the Payment of Wages Act, 1991. The situation with regard to SNA’s is identical to the Teacher’s situation. The Respondent said that it had no control with regard to the allocation of hours, it relies on the Department for this.

The Respondent said that it was notified by letter dated 15 February 2019 that the SNA hour allocation was reduced to zero. The date of effect was the date of the Department’s letter. The Respondent said that the Complainant queried this date and sought the date should be 19 February 2019, the day that the Complainant became aware of the Department’s decision. The Respondent said that the Complainant wrote to it and raised a complaint about the loss of 4 days. The Respondent noting the anomaly agreed to pay the Complainant from its own resources as a good will gesture. It highlighted that there was no obligation on it to do so. The Respondent said that it sent a cheque to make up for the short fall, but the Complainant refused to accept its offer.

The Respondent referred to the decision in Minister for Education and Science and the Labour Court and Anne Boyle and the Committee of Management of Hillside Park Pre-school, 2015 IEHC 429 where under the Payment of Wages Act, 1991 the Minister for Education and Science was determined as the Complainant’s employer for the purpose of wages. The Respondent said that “wages” under the Act includes “any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice”. Therefore, the Respondent said that the Department is the appropriate Respondent in cases for any payment in lieu of notice and not the Board of management of the school.

CA-00029350-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

I note the crux of this dispute lies where the Complainant feels that the Respondent failed to finalise the grievance procedure and therefore, she claims that she was unable to return to work and this resulted in a reduction of her financial situation resulting in a financial loss. She had to appeal to the WRC to get satisfaction to her grievance.

I note the Respondent said it dealt with the Complainant in an appropriate manner at all times throughout. It suggested she pursue her case down the grievance procedure route. It tried to have the matter resolved locally and by the terms of its own procedures. The person at the centre of the Complainant’s issue left and it was unable to get a resolution to her satisfaction. She remained on certified sick leave until January 2019. The Respondent said that it had attended the previous case before the WRC taken by the Complainant and followed the recommendation of the Adjudication Officer.

I am satisfied that the centre of the Complainant grievance is the manner in which the School Principal had approached the Complainant and informed her about parent’s oral allegations about a child in the Complainant’s care. I note the Principal had left the Respondent’s employment soon after.

I accept that the Respondent tried to find a solution to the Complainant’s satisfaction. I am satisfied that the Respondent reinforced that it had no concerns on the Complainant’s record, as far as it was concerned, she had an unblemished record. I note that she was on certified sick leave and not in a position to return to school until she was certified to do so. I note that the Complainant went through the grievance procedure. However, I am not satisfied that the Respondent failed to act, and its failure exacerbated her situation. I accept that the Respondent failed to conclude the grievance formally, and that was by failing to put its findings in writing. However, I am satisfied that they engaged with her and made attempts to complete this satisfactorily.

I note that the Complainant previously brought a dispute to the WRC requesting the school to formally finalise the grievance procedure. The WRC’s Recommendation supported her request. However, I am not satisfied that this was a fundamental failing in the scheme of things from consideration of the facts of this case. She had returned to work prior to the WRC hearing and the issue of the WRC Recommendation. The Recommendation did not pave the way for that return to work. I note that she was medically unfit for work during that period. The Respondent engaged in what it deemed was appropriate and in line with its policy. The Respondent cannot be held accountable for any significant wrong doing.

CA-00029350-002 - Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

The Law

Minimum period of notice

4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

…

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

…

(3) The provisions of the First Schedule to this Act shall apply for the purposes of ascertaining the period of service of an employee and whether that service has been continuous.

(4) The Minister may by order vary the minimum period of notice specified in subsection (2) of this section.

(5) Any provision in a contract of employment, whether made before or after the commencement of this Act, which provides for a period of notice which is less than the period of notice specified in subsection (2) of this section, shall have effect as if that contract provided for a period of notice in accordance with this section.

(6) The Minister may by order amend or revoke an order under this section including this subsection.

I have noted and considered all the submissions from the parties and I am satisfied the relevant position in relation to the unique tripartite arrangements that exist in both the SNA and teachers arrangements is best captured in the decision of the Labour Court in the determination DWT1716 Minister for Education & Skills v Jacqueline Walsh where it refers to the Court of Appeal decision in The Minister for Education and Skills v Anne Boyle [2017] IECA 39. Where it noted the following,

“Hogan J in Boyle, traces in great detail the case law in relation to what he refers to as “the nature of the triangular pact identified by Gibson J in [Fox v Higgins (1912) 46 ILTR 222] over 100 years ago [that] still defies any standard conceptual analysis, at least for the purposes of the general law of contract.” (Par 78). Nevertheless, the learned Judge concludes his analysis with the observation that “the legal realities” of the relationship between a teacher/SNA, the Board of the school in which that person is employed and the Minister has two employers: the Board is the employer for certain mattes arising from an express contract with the school; the Minister is the employer for other purposes (such as for example, availing of employment protections in matters relating to pay and remuneration) based on an implied contract between the teacher and the Minister. The Boyle case specifically related to a claim under the Protection of Employees (Part-time Work) Act 2001, however, the judgment would appear, at least by analogy, to apply to all employment-related protective legislation that impacts on employees’ remuneration entitlements. This Court is clearly bound by the judgment of the Court of Appeal. Applying the reasoning of that judgment, It appears to this Court that the correct respondent for the purposes of the claims under the 1997 Act (only) is the Minister.” [my emphasis is added].

I am satisfied and it is clear that the Department is the paymaster and the appropriate Respondent in such cases in relation to the matter brought under this legislation.

Accordingly, I find that the Respondent named in the within case is not the correct Respondent for the matters raised in this complaint. The case against the named Respondent is therefore not well founded.

CA-00029350-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

I find that the case is not well founded.

CA-00029350-002 - Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

I find that the Respondent named in the within case is not the correct Respondent. The case against the named Respondent is therefore not well founded.

Industrial Relations Acts - Minimum Notice & Terms of Employment Act – SNA – not well founded – incorrect respondent.