Complainant

Respondent

Parties

Sharon  McCarthy

Coláiste Eamann Rís

Representatives

Forsa Trade Union

Mr. Kevin Roche BL instructed by Mason Hayes and Curran LLP

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00051133-001

14/06/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00051133-002

14/06/2022

The Complainant is a Special Needs Assistant (SNA) who works for a Secondary school. She previously worked full-time for the Respondent employer and in 2016, she requested to reduce her hours to part-time and to work three days per week.

Her case is that she is working slightly more hours per week than she is being paid for, i.e. that she is paid for 0.6 but is working the equivalent of 0.656. She further submits that she did not receive a new contract/terms of employment consistent with the requirements of the Terms of Employment (Information) Act 1994, when she went from full-time hours to part-time hours.

Both her claims are denied by the Respondent.

First, the Respondent submits that both the claims are out of time and that the WRC does not have the jurisdiction to entertain them.

Second, the Respondent denies that the Complainant is working more hours than she is paid. It submits that she is rostered correctly; and that payment is made by the Department of Education; It submits that she is treated no less favourably than any full-time comparator. It further submits, that if anything, she is rostered for fewer hours than she is paid. The Respondent further denies that the Complainant did not receive updated terms of employment in line with the requirements of the Terms of Employment (Information) Act 1994. It submits that what occurred here was somewhat unusual, and it is a legacy issue – the previous school principal allowed some staff members to go part-time – and that this is a local arrangement.

In attendance, were:

For the Complainant

·       Ms. Liz Fay – Forsa, for the Complainant

·       Ms. Sharon McCarthy, the Complainant

For the Respondent

·       Kevin Roche BL, Counsel for the Respondent

·       Instructed by Mr. Lorcan Moule, Solicitor, of Mason Hayes & Curran LLP.

·       Mr. Aaron Woulfe, Principal of Coláiste Eamonn Rís, Respondent school

Preliminary point – out of time

The Respondent raised a preliminary point that both claims were “out of time.” The Complainant disputes this and submits that the breach is “ongoing and continuous” and further submits that she raised the matter repeatedly with her employer.

Preliminary point – the requirement to provide a specific comparator, under the Protection of Employees (Part-Time Work) Act 2001

At the first day of hearing, the Complainant did not cite any specific comparator in her evidence, and sought instead, through her representative’s submission to rely upon the national agreements governing SNA contracts and correspondence from the Department of Education and Skills (DES) setting out the hours applicable to SNAs and the divisor applicable to part-time SNAs.

Ms. Fay submitted that the issue was known to the employer for quite some time, in relation to part-time workers versus their full-time colleagues. She said that it was within the employer’s knowledge as to how many part-time and full-time SNAs it had, and their hours of attendance.

She submitted that it was fully covered by three (3) Circulars:

·       Circular 12/2005 – pertaining to Secondary school SNAs

·       Circular 71/2011

·       Circular 30/2014

She submitted that there was no room for any disparity of pay, only the rate of pay.

At the second day of hearing, two full-time SNAs in the Respondent school were named, for comparison.

Substantive case

The Complainant submits that she had a permanent full-time contract as a Special Needs Assistant with the Respondent school. In 2016, she requested that her work be reduced to a three full day working week and was paid pro-rata. In 2020, the Complainant submits that she realised the hours she was working were not equal to the pay that she was receiving. She engaged, at local level, and requested that her contract be revised to reflect the hours she was working. It is submitted that she works more than her full-time comparators for the pay that she receives. The Complainant submits that local negotiations produced no success.

The Complainant submits that in 2016, she sought to reduce her working week from five (5) days to three (3) days, reducing her pay to three-fifths (3/5). She submits that it was not clarified what the three fifths equated to.

The Complainant’s salary, as an SNA, is set by the Department of Education and Skills (DES) – a part-time percentile is paid on a pro-rata basis on that salary for part-time worker. The Complainant submits that the agreed pay divisor is 32 hours – that a clarification was issued by DES in respect of that, with regard to SNAs in Circular 12/2005 – it is submitted that SNAs do not work for contact time, that applies to teachers only, not to SNAs; it is submitted that SNAs work for the students’ breaks too.

The Complainant submits that full-time working hours for an SNA at the Respondent school are 31 hours 14 minutes, that she works three full days which equates to a 0.65 post. She submits that she works 20 hours 12 minutes per week but is paid only for a 0.6 while being required to be in attendance for a 0.65 post – this, it is submitted, occurred by deducting her break times.

The Complainant, Ms. Sharon McCarthy gave evidence, on her own behalf, on the first day of hearing.

She gave evidence that she had been an SNA for fourteen (14) years, that she was part-time for the first year, then on a full time (32 hour) contract after that. She said that in June 2016, she asked the then-principal if she could reduce her hours for the new school year, i.e. from the end of August 2016. She said that he rang to say that he was taking it to the Board of Management (BoM), that the contract was in the post, and to get it back as soon as possible.

She said: ‘I did sign something else that stated the hours that I would work’ - she said that was in June 2016. To her recollection, 21 hours was written on it. She said that she ‘didn’t realise that there was an issue at all’ until she received a call in June 2020, when she received a phone call from Mr. Aaron Woulfe, the current school principal stating he was updating the hours for the coming year. She said that he said to her: ‘You’re down for x hours’ – she could not remember the exact number, but it was fewer than twenty (20). She said: ‘I actually thought he had me mixed up with another SNA.’

She said that subsequent to that, there was a meeting called among the SNAs (full time and part time), in the second week of June 2020, subsequent to the phone call she received. What was discussed was whether the hours of SNAs are calculated ‘bell to bell’ or contact hours. She said that the issue was whether lunch breaks were paid or not.

The Complainant said that theretofore she ‘just took what I was given.’ She said that she ‘realised I was working three full days but not being paid for three full days.’ She said that her work pattern was Monday, Thursday, and Friday.

The matter adjourned (on application), and when it re-convened, the Complainant was cross-examined by Counsel for the Respondent, on the second day of hearing.

On cross-examination, by Mr. Roche BL

The evidence given on the first day was re-capped. The Complainant was previously on a 32-hour contract. In 2016, the Complainant asked for a reduction – to go to three full days. She said the previous school Principal asked her: “What would suit me?” She said that she asked for three full days – Monday, Thursday, Friday – and the then school Principal said that was fine. It was put to her that she had worked those days since, that she had been “facilitated in that regard”, which she accepted.

It was put to her that there was a change of contract form – from 5 days to 3 days – reduced by 2/5; and that it does not affect seniority.

In relation to the document which the Complainant said was handed into the school and which she said had 21 hours written on it, it was put to her that the Respondent says that document does not exist and could not exist. The witness disputed this. She said: “No, I can only say what I remember.”

The hours of the school were put to the witness: 8.45  am – 15.29 pm; and that in total, there were forty-five (45) minutes of rest breaks throughout the day. The witness said that there was thirty (30) minutes for lunch and another break of between 10-15 minutes.

It was put to the witness that previously there had been six one-hour classes, and “now, that too has changed over time” and “classes are 58 minutes in length.”

[A copy of a timetable was produced by the witness and submitted.]

Mr Roche BL put to the witness that he calculated her contact time with students to be 5 hours and 48 minutes, and that including transitioning time the figure was, at a maximum, six (6) hours. The witness vehemently disagreed with this.

The witness said that the timetable was “8.45 am – 15.29 pm excluding two breaks, and that’s when I am available for work.”

She said: “Bear in mind, I am working with special needs students. A lot more to be done, to transition them, enable them, help them throughout the day.”

Mr. Roche BL reiterated his calculation and re-iterated that it included transitioning time. The witness said: “I’m not interested in minutes and hours.”

An example of a class was taken from the timetable the witness submitted, and it was put to the witness: “The transition periods are built into the timetable that you handed me this morning.” She variously said she did not understand the question, asked to speak with her representative (which the Adjudication Officer declined, as the witness was under cross-examination) and then re-iterated that she disagreed with Mr. Roche’s calculation that contact time including transitioning is six (6) hours per day. He asked why she disagreed with it. She said: “It’s not correct.”

The Adjudication Officer, at the hearing, intervened in this back-and-forth, and clarified with the witness that while she was not agreeing with the calculation of six (6) hours, if the daily calculation of six (6) hours is correct, then the weekly calculation for her would be eighteen (18) hours, i.e. 6 x 3. The witness accepted that saying ‘that’s just common sense.’

Mr Roche BL addressed the types of work that the Complainant carries out in the school, in his cross-examination. It was put to her that since going part-time, there were certain duties the Complainant had not been required to carry out/had not carried out, specifically around toileting (intimate care for a child with special needs) and similarly catheterisation. The Complainant accepted that.

The Complainant was asked whether she was involved in any extra-curricular activities in the school? She said: “No.” She was asked whether she was involved in any English as a Foreign Language (EFL) classes after school? She said “No.” She was asked about the requirement to work the so-called ‘Croke Park hours’ – up to seventy-two (72) additional hours per year. She agreed that she was not required to work them but then added: “I’m totally confused, because it is different every year. Every principal or deputy principal.”  She was asked whether she worked in the month of June? She said: “No.” She was asked whether she received supplemental pay for examinations. She said that she “did it in the past.” She was asked whether she was required to work on ‘Junior Cycle Teacher Training days?’ She said that “none of the SNAs do.” She was asked whether she was involved in the schools ‘Homework Club’? She said: “No, it’s after school.”

FINAL Submission by Ms. Fay, on behalf of the Complainant.

Ms. Fay submits that the issue is clearly set out under three (3) Circulars.

She submits that the ‘Change of Contract Form’ does not set out the new hours in return for a loss of 2/5 of pay. She submits that the ‘Change of Hours’ document does not give the breakdown. She does not believe that it meets the Terms of Employment (Information) Act 2014.

Ms. Fay submits that ‘contact time’ applies to teaching staff - and only teaching staff - under the Education Act 1998.

She submits that s. 2.5 of Circular 05/12 sets out the availability required of SNAs.

She said that ‘the scalpel approach does not necessarily apply in this case.’

She submits that Circular 30/14 sets out the duties of SNAs, but the school has decided to implement a child-centred approach in relation to SNAs working with children that have a high care need or an intimate care need.

She submits that the school (the principal) took the decision to give the lunch-break to full-time SNAs, as well as to part-time SNAs.

She submits that: ‘Either way, if you work out 3/5 of that, the percentile and the fractions work out to be 0.656.’

She submits that the additional duties Mr. Woulfe gave examples of are voluntary, and that they cannot use that as a metric for someone who is not in receipt of additional remuneration for, and not contractually required to provide.

She submits that the applicable multiplier is the one set out by the DES in relation to part-time non-teaching-staff payroll.

The Respondent denies any wrongdoing under the Acts.

Preliminary point – out of time

Counsel for the Respondent submits that both complaints are out of time – pursuant to section 41 of the Workplace Relations Commission Act 2015. He submits that the date of the alleged contravention is 71 months and 25 days prior to the filing of the claim.

He submits that under s. 41  of the WRC Act, time begins to run from the date that the discriminatory act occurs – and he submits that there is no discrimination – but time would run from 2016, some 71 months 25 days, prior to the case being received by the Director General of the Workplace Relations Commission (WRC). He submits that even elongated to the twelve (12) months period, they were also considerably outside of the allowed time-frame.

He contrasted the position of the Acts under which these complaints had been taken, and the Employment Equality Act, where he said that the date could be ‘extended back’ from the most recent date of discrimination but that the 2001 Act ‘had no such saver.’

Preliminary point – no comparator

Counsel for the Respondent submits that the claim, as it is put forth, does not include a comparator, and that a specific comparator must be put forth under the Act. He submits that unlike the Employment Equality legislation, it is not open to the Complainant to cite a hypothetical comparator (which, he said in fairness, the Complainant did not do). He submitted that the comparator would need to be not just a full-time comparator, but one within the same school, and (as a matter of legal principle) that the Respondent needs to be on notice of whom the Complainant is citing, in order to be in a position to meet the case. He cited the case of Galway City VEC v Patricia O'Donovan (PTW/IO/7), in this regard, wherein the Labour Court held:-

"The general scheme of the Act is to provide that a part-time employee shall not be treated less favourably than a comparable full-time employee in respect of her conditions of employment including pay and pension entitlements. Thus, in order to ground a claim under the Act, a part-time employee must first identify a comparable permanent employee against whom he or she claims to be treated less favourably."

Mr. Aaron Woulfe, Principal of the Respondent School, gave evidence on behalf of the Respondent.

He said that he had been Deputy Principal since 2016, Acting Principal since 2019 and Principal of the Respondent school since 2020.

In relation to the hours of part-time SNAs, he explained that the hours are as follows: A full day is 6 hours 24 minutes and if an SNA is taking an unpaid leave day, they are recorded as being absent for 6 hours 24 minutes. He said that actual working time is 5 hours 48 minutes [Adjudicator’s Note: This calculation is based on local arrangements – school start time/finish time, collection/dispersal, breaks] but they are still paid for 6 hours 24 minutes.

He outlined the SNA ratio in SEN (Special Educational Needs) units; and that the number of SNAs is determined by the Department of Education (DES).

He said that for a full-time SNA, the Department of Education standard is a maximum of 6 hours 24 minutes per day. He said: “I can’t return an SNA for more than 6 hours 24 minutes on the Department’s system.” He said that was down to the “joint managerial bodies” and was “a national agreement” and he said that the Complainant’s union representative had been made aware of this in correspondence. (A copy of the correspondence was submitted.)

He said that the Department of Education was the paymaster.

He said that the OLCS (the system for returning hours for payroll) was a national system and that he cannot change it. He explained that the money he is allowed to ‘cover’, i.e. to pay a substitute SNA is 6 hours 24 minutes - the system is automatic.

He said that part-time SNAs are paid on a pro-rata basis per hour worked. (Copies of the correspondence between the parties setting this out, and explaining the divisor were submitted and relevant sections were read into evidence.)

Counsel for the Respondent suggested that rudimentary mathematics would indicate that 1 day is the equivalent of 0.2, and 3 days therefore 0.6.  Mr. Woulfe re-iterated that the correct figure comprised less than six hours contact with students and then the transition time.

He said: “We’ve always given Ms. McCarthy her preferred days. From a school’s point of view, that is not a child-centred approach to timetabling.”

He said that he and the Special Needs Co-ordinator and the Deputy Principal determined which children had the highest need, and rostered the full-time SNAs there, with part-time SNAs being slotted around that. He explained that the reason for this was a child-centred approach, for continuity. He outlined that some of the children with higher needs needed support with intimate care such as physical help with toileting or help with catherisation or help changing colostomy bags. He took the view that it was not fair to the child to have staff changeover with respect to those duties, i.e. not fair to have toileting/intimate care provided by three different people. The result of this is that those duties are carried out by the full-time SNAs and not the part-time SNAs, as a result of the school’s child-centred approach. He also said that some parents require a lot of contact from the school and typically full-time SNAs were assigned, in those instances too.

He outlined that he tried to make the school as nice a place to work as possible for SNAs and was flexible where he could be flexible or offer anything additional, to that end. The SNAs, neither full-time nor part-time, were required to do the additional hours under the Croke Park agreement. They were not required to work in June. They were not required to work the Open Day, nor the two Junior Cycle Teacher Training Days. He said that working in June was voluntary and some people elected to do it for supplemental pay.

It was put to him that since the first day of hearing, two full-time SNAs have now been identified as comparators in the supplemental submission of the Complainant, submitted between the first hearing date and the second.

Comparator No. 1

In relation to Comparator No. 1, he outlined that that SNA was required to do the toileting, deal with  catherisation and colostomy bags and engage with the pupils who have the most acute need for special care. He further outlined that that SNA volunteers once a week in Homework Club; that Comparator No. 1 was involved in the Positive Behaviour Strategy Team and did ‘huge work’ in relation to that, and that team met two or three times a week. He said that person was trained as a psychotherapist and offered that service to the students (counselling). He said Comparator No. 1 was providing English as a Foreign Language (EFL) classes during their lunch break to the students. He also outlined some, periodically held, creative events in which Comparator No. 1 played a very significant role. He described Comparator No. 1 as doing “an awful lot for the school.”

Comparator No. 2

He described Comparator No. 2 as being very highly thought of by the teaching staff, and that when he tries to move Comparator No. 2, teachers write to him requesting they get to keep Comparator No. 2.

He said, that again, this particular SNA did a great deal for the school, including upskilling the SNAs in IT and Google Docs; overseeing the IT devices on Open Night; setting up a system for the school whereby parents could sign up for the school digitally – Comparator No. 2 got rid of paper in this regard and now the school has a new application form which is then linked to Google Docs. He said that Comparator No. 2 had a ‘huge role in the school.’

He also said that Comparator No. 2 carried out additional duties, regarding art classes.

He re-iterated that part-time SNAs are entitled to pro-rata. Counsel for the Respondent put to him that, in relation to a lot of the activities he had outlined that the Comparators carry out: “To be as fair to the Complainant as possible, those activities are voluntary.”

On Cross-examination by Ms. Fay

The voluntary nature of the extra-curricular activities was explored with the witness. The witness was asked how those activities came about and how one could sign up for them. He said generally an email went around asking: ‘Who wants to volunteer?’, that it was a general call for volunteers. He said it was generally full-time SNAs who volunteered.

He outlined that people volunteered after school, before school, during lunchtime, on Saturday, on Sunday. He said one group of SNAs had stayed in (the school) for the month of June, working on a design project. It was put to him that there was a derogation for the month of June, that they don’t have to come in, which he accepted.

He was asked whether after-school clubs were covered in the SNA contract. He said: “No.”

He outlined that some SNAs were taking children to Disneyland on a three-night trip. He was asked if they were obliged to do so. He said: “No.”

It was put to him that extra-curriculars are voluntary work, which he accepted.

It was put to him that the Complainant is not obliged to volunteer, which he accepted.

He was asked whether every SNA volunteers. He said: “I’d have to go back through the list.”

He said that 6 hours 24 minutes is a full-time SNA, and that when he is returning the hours to the Department of Education, he does not enter the hours on the system. He said that next to the hours of the previous principal, he writes down “No change” for full-time hours. For 3/5 of the working week, he writes 3/5. He said that this system had been devised by the Joint Managerial Body (JMB), that 32 hours was a full-time week for an SNA. He said: “I don’t work out the pay of SNAs. I am not the paymaster.”

It was put to him that which SNAs work with which students is decided by the Principal, Deputy Principal and Special Needs Coordinator together, that Circular 14 sets out the duties of an SNA and that it applies to all SNAs, but that the school has implemented a child-centred approach (in terms of the allotment of duties). The witness agreed.

He was asked about time-tabling and whether it is decided by school management. He said that the  Principal decides the timetable under the Education Act.

Circular 12/05, section 2.5 was put to him. It was put to him that “this is the multiplier.”

The witness outlined a number of initiatives he had introduced to make working conditions better for SNAs in his time at the school, in relation to them getting to take their break at lunchtime; June; the Junior Cycle reform days; the Christmas and summer exams; their required return date in August. He said that he had introduced these approaches because he wanted to make working life in the school for the SNAs as nice as possible, insofar as it was within his gift to do so. He said that was appreciated by the SNAs and often, SNAs would say to him: “If you’re stuck Aaron, I’ll come in and help.”

He was asked about payment for June working. It is paid by the SEC (State Exams Commission), not the school and not DES.

He explained that DES tells you how many SNA positions the school has. He said that his school has eighteen (18) positions. He said generally they would be full-time positions but the previous school Principal allowed some of the full-time SNAs to go part-time. He said that there is no agreement or Circular in relation to this, that it is a local arrangement. The witness gave evidence that the school was unusual in having this local arrangement with some of its SNAs, which does not exist in other schools.

Mr. Roche BL – Final Submissions on behalf of the Respondent

1.       The Respondent submits that on the days the Complainant is working (Monday, Thursday and Friday), there is no difference in treatment between her and any other full-time member of staff. He cited the school Principal’s evidence and previous correspondence, in that regard.

2.       Without prejudice to the foregoing, if there is a difference in treatment, the principle of pro rata temporis applies; and he said Courts scrutinise very carefully where the principle of pro rata temporis applies. He said it was set out by DES. He submitted that the divisor – 0.2 x 3 = 0.6

He submitted that the school Principal has done everything he can do. He submitted that the Complainant is working less than 6 hours 24 minutes per day, that at its height, she is working six (6) hours per working day.

He submitted that: “If I understand the Complainant’s case correctly, either the divisor is wrong or the pro-ration is incorrect. If you [the Adjudication Officer] are satisfied that the pro-rata is incorrect, then this is not a Protection of Part-time Workers Act case – this is a matter for a different forum, as it would affect the vast majority of SNAs that work all over the country.”

He submitted that while the Complainant’s representative submitted that the “Change of Hours” contract form does not set out her correct working time/days, that is not correct. In fact, it does. (Copy of document submitted). He submitted that it reduces her working week from five (5) days to three (3) days and sets out Monday, Thursday & Friday as the days she will be working. He submitted that the contract, which is on foot of a collective agreement, applies to all SNAs. He emphasised that it has been Mr. Woulfe’s practice to not require the part-time SNAs to carry out all of the duties, particularly around some of the more intimate care needs, because he has applied a child-centric approach. He submitted that, if the Adjudication Officer finds that the principle of pro rata temporis does not apply, in fact the conditions are more favourable to part-time workers than to the full-time workers.

He said that the evidence in relation to volunteering, that was by way of general submission – in relation to the Comparators who have now come into the case, that persons make themselves available including during their rest breaks – they volunteer. They are not comparable employees. He submitted that the Complainant’s representative had previously said she did not need to provide a Comparator, but she now seems to accept that she does need to provide one.

Counsel for the Respondent submitted that Mr. Woulfe’s understanding and everything he can do in respect to the Complainant, is set out in his letter of 09/09/2021, that “anything he can do he has done.” He submitted that “the DES says that this is how it has to be carried out, and the Principal carries it out as best he can, within his own confines.” He submitted that “our submission is that she is remunerated correctly. In fact, remunerated for more time than she works in a given day.”

He submitted that it also remained his submission, vehemently, that this claim is out of time. He submitted that the 2001 Act is “a very different beast, a completely different animal, to the Employment Equality Act”, that there is a “time saver” in the EEA, that “time can be dated back from the most recent act of discrimination” in relation to acts of “classic discrimination” under the nine protected grounds. He said that “the 2001 Act does not provide that particular saver.” He also refuted any suggestion that there was any discrimination in this case.

CA-0051133-001 – For the reasons set out above, I find that this complaint is not well founded.

CA-00051133-002 – For the reasons set out above, I find that this complaint is not well founded.

Out of time; Comparator; Part-time Worker; SNA; Divisor; Circulars;