ADJ-00027800

Complainant

Respondent

Parties

John (Sean)  Brilly

Department of Education and Skills

Representatives

Kieran Falvey B.L. instructed by Burns Nowlan Solicitors

Department Officials

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-00035605-001

07/04/2020

This complaint relates to an alleged unfair dismissal. The respondent is named as the Department of Education and Skills. The substantive issue of the complainant’s dismissal has been addressed in ADJ -00027798 where the Board of Management of the school that employed the complainant is named as the respondent to that complaint.

In the within complaint, the respondent contends that it has been incorrectly named. In respect of complaints of unfair dismissal, the respondent contends that it is the Board of Management of the school that is the employer and not the Department of Education and Skills.

The respondent submitted that under the Education Act 1998, the Board of Management of each school is the direct employer of teachers and non-teaching staff employed in these schools. Appointment and dismissal are statutory responsibilities of the School Board of Management, not the Minster. Pursuant to Section 24 (11) of the Act: 1

 “The board of a recognised school may, in accordance with procedures determined from time to time by the Minister following consultation with bodies representative of patrons, recognised school management organisations and with recognised trade unions and staff associations representing teachers or other staff as appropriate, appoint, suspend or dismiss any or all of the Principal, teachers and other staff of a school, who are remunerated or who are to be remunerated out of monies provided by the Oireachtas.” [Emphasis added]

The respondent also referred to the November 2018 decision of the Supreme Court in The Minister for Education and Skills & anor -v- Boyle & anor, [2018] IESC 52, regarding the matter of employer for teachers paid out of monies which have been provided by the Oireachtas for that purpose. Paragraph 9.5 of that judgment states:

“It also seems to me to be necessary to pay particular regard 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.” [Emphasis added]

The issue of the Department of Education and Skills being the incorrect respondent was not challenged by the complainant’s representatives at the adjudication hearing.

I have considered the submissions of the respondent to this complaint and accept its position that the correct respondent is the Board of Management of the school that employed the complainant. Accordingly, I find that the within complaint naming the Department of Education and Skills as the respondent is misconceived.

On the basis that the complaint has been submitted against the incorrect respondent, I find that the complaint is misconceived.

Incorrect respondent