ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00031135
Parties:
| Complainant | Respondent |
Parties | School Teacher | A Government Department |
Complaint(s):
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00041737-001 | 09/11/2020 |
Date of Adjudication Hearing: 13/09/2021
Workplace Relations Commission Adjudication Officer: Brian Dalton
Procedure:
In accordance with Section 41 of the Workplace Relations Act, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The department was named a respondent along with the school; however, based on the facts of this case I have decided that the Department is not a properly named party to this complaint. The facts of the case relate to alleged penalisation and relies on section 27 of the Safety, Health and Welfare at Work Act 2005: Protection against dismissal and penalisation. 27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment. (2) Without prejudice to the generality of subsection (1), penalisation includes— ( a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal, ( b) demotion or loss of opportunity for promotion, ( c) transfer of duties, change of location of place of work, reduction in wages or change in working hours, ( d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and ( e) coercion or intimidation. (3) An employer shall not penalise or threaten penalisation against an employee for— ( a) acting in compliance with the relevant statutory provisions, ( b) performing any duty or exercising any right under the relevant statutory provisions, ( c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work, ( d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions, ( e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or ( f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.
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Preliminary Matter
The matter has been investigated and the party to the complaint is the school in this instance and the Department is not a party to the complaint. I make this decision as the complaint relates to penalisation and the claim is made against the school principal and the school board. The Act at 27 states:
27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.
The circumstances of this case clearly relate to the employee’s school. While the Department provides funding to the school it has no part to play in the day-to-day management of the school or any supervisory role regarding discipline or grievance hearings or a decision-making role regarding this specific complaint. The claim is brought against the employer under section 27 and the school is the employer in this case.
This decision is consistent with Boyle [ 2018 IESC 52]
10.1.
While there can be no doubt that the unusual tripartite or triangular relationship which exists between the Minister, a board or committee of management and a teacher in much of the Irish educational context gives rise to difficult questions concerning the proper interpretation or characterisation of that relationship for various legal purposes, I am, however, satisfied that this case comes down to one of deciding whether it can be said that the Minister is involved in a contract of service with Ms. Boyle
Summary of Complainant’s Case:
See preliminary matter |
Summary of Respondent’s Case:
See preliminary matter |
Findings and Conclusions:
See preliminary matter |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I don’t have Jurisdiction to hear this complaint against the Department as they are not a party to this matter. 27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment. The circumstances of this case clearly relate to the employee’s school. While the Department provides funding to the school it has no part to play in the day-to-day management of the school or any supervisory role regarding discipline or grievance hearings or a decision-making role regarding this specific complaint. The claim is brought against the employer under section 27 and the school is the employer in this case. This decision is consistent with Boyle [ 2017 IESC 52] 10.1. While there can be no doubt that the unusual tripartite or triangular relationship which exists between the Minister, a board or committee of management and a teacher in much of the Irish educational context gives rise to difficult questions concerning the proper interpretation or characterisation of that relationship for various legal purposes, I am, however, satisfied that this case comes down to one of deciding whether it can be said that the Minister is involved in a contract of service with Ms. Boyle The Minister in this case does not have a contract of service with the complainant. |
Dated: 10th December 2021
Workplace Relations Commission Adjudication Officer: Brian Dalton
Key Words:
Proper Respondent-Contract for Service |