Complainant

Respondent

Parties

Oleksandra Dudurych

Board of Management of Our Lady of Good Counsel Infant National School

Representatives

Vadim Karpenko, Legal Bridge Advisors

Rosemary Mallon BL

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-00064404-001

30/06/2024

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

CA-00064404-002

30/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00064404-003

30/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00064404-004

30/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00064404-005

30/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00064404-006

30/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00064404-007

30/06/2024

The complainant is registered with the Teaching Council to teach in a secondary school.  The documents she submitted for the hearing show that, on May 26th 2023, she applied for a position as a teacher in Our Lady of Good Counsel Infant Primary School in Mourne Road in Drimnagh, Dublin 12.  On August 29th 2023, she commenced working on a one-year fixed-term contract as a teacher in an early intervention class.  In preparation for the hearing, the complainant submitted a copy of a Primary Teachers Appointment Form 2023/2024.  This shows that the purpose of the fixed-term contract was to fill in for a teacher on a career break.  The form shows that the commencement date of the contract was August 31st 2023 and the end date was August 31st 2024.  On page 2 of the form, the complainant inserted her Teaching Council Registration number and ticked the box to indicate that she was registered “for the purpose of Primary teaching, in accordance with circulars 31/2011, 25/2013 & 52/2013.”

In her evidence at the hearing, the principal, Ms Warren, said that she received a text message from the complainant on December 5th 2023 telling her that she hadn’t been paid any wages since the end of October.  Ms Warren said that the teachers’ payroll is managed by the Department of Education and she advised the complainant to contact the Department.  The following day, Ms Warren said that she was contacted by an employee in the Department, who informed her that the complainant was not qualified to teach in a primary school and that she should not have been offered a fixed-term contract.  Ms Warren said that she was told that she would have to re-advertise the job and continue to look for a qualified person to fill the vacancy.  In the meantime, Ms Warren said that she was advised that she could employ the complainant on a term-to-term basis.

The complainant claims that she was not issued with a statement in writing of her terms and conditions of employment.  On behalf of the respondent, Ms Mallon informed me that the respondent accepts that the complainant was not provided with a statement in writing of her terms and conditions of employment.   It is apparent also that she was not informed in writing that the original job offer had changed from being an offer of a one-year fixed-term contract to a term-to-term contract.

The complainant said that on December 5th 2023, she was informed that she was “fired” the previous October 27th.  The documents she submitted show that a second Primary Teachers Appointment Form 2023/2024 was submitted to the Department for the period from November 6th until December 22nd 2023.  In her evidence, Ms Warren said that she was aware that the complainant was returning home to Ukraine for Christmas and that she had no money.  She said that she offered the complainant a loan from the school.  The complainant repaid the loan in January.

A third Primary Teachers Appointment Form 2023/2024 was completed for the complainant for the period from December 23rd 2023 until April 5th 2024.  The complainant returned to work on January 8th 2024 and informed the principal that she had another job and that she was leaving.  On the same day, the complainant submitted a letter of resignation to the chairperson of the board of management of the school.  In her evidence, the complainant said that she got a job in a secondary school.  At the hearing, she provided a copy of her payslip dated January 4th 2024 which shows that she received €5,063.20 in arrears of wages.

Teaching Qualifications

A copy of Circular 31/2011 and 44/2019 were provided in advance of the hearing of these complaints.  I understand that Circular 44/2019 replaces earlier versions.  At clause 3 of chapter 2 of this circular, it is stated that the minimum requirements for employment as a post-primary school teacher is that a teacher,

a)        Is registered with the Teaching Council for the sector (see Section 3.2) and

b)      Has qualifications appropriate to the sector and suitable to the post for which he/she is to be employed (referred to in this circular as “appropriately qualified”).

Section 3.2 of the circular sets out the “routes” to qualification.  I understand from the website of the Teaching Council that “route 1” is to take a four-year degree course which is recognised by the Teaching Council and delivered by one of 13 selected teacher training colleges in Ireland.  “Route 2” is to complete an undergraduate degree followed by a Professional Masters in Education.  I understand that the complainant is not qualified in accordance with routes 1 or 2 but that she is qualified to teach English in a secondary school.   

The fact that the complainant is from Ukraine and may not be familiar with the Teaching Council regulations in Ireland, and the fact that she worked as a substitute on a daily rate of pay before she accepted the fixed-term job may have contributed to the misunderstanding when she completed the Primary Teachers Appointment Form and indicated that she was qualified to teach in a primary school.  She is a qualified secondary school teacher, and she may be employed to teach in a primary school if there is no qualified primary school teacher available.  In these circumstances, I understand that she can be employed only on a term-to-term basis while the school continues to advertise for a qualified teacher.

CA-00064404-001:  Complaint under the Terms of Employment (Information) Act 1994

The respondent accepts that the complainant was not issued with a statement of her terms and conditions of employment and that they did not comply with section 3(1) of the Terms of Employment (Information) Act 1994 (“the 1994 Act”) in relation to her employment.

It is also not disputed that the complainant was not issued with a statement of her main terms and conditions of employment within five days of the commencement of her employment.  I find therefore, that, in relation to the complainant’s employment, the respondent did not comply with section 3(1A) of the 1994 Act.

CA-00064404-002:  Complaint under the Terms of Employment (Information) Act 1994

The complainant claims that the respondent changed her terms and conditions of employment without informing her.

Changes to terms and conditions of employment are addressed at s.5 of the 1994 Act:

(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or

Subsection (b) is concerned with assigning an employee to work outside Ireland and subsection (2) relates to changes in legislation.  These subsections are not relevant to the complaint under consideration here.

The complainant is concerned that her contract was changed from the original offer of a one year, fixed-term contract to one based on a term-to-term offer.  She was also concerned that her wages were reduced to reflect the fact that she was not qualified to teach in a primary school. 

The objective of s.5 of the 1994 Act is to ensure that employees are notified in writing of changes to previously issued statements.  As the complainant was not issued with a statement in the first instance, she was stymied in her ability to understand the reason for changing her terms and conditions after three months.  I accept the complainant’s position that, in breach of s.5 above, she was not notified of the changes to her terms and conditions.

I have considered the respondent’s failings with regard to the rights of the complainant to a written statement of her terms and conditions of employment, and her right to be notified in writing of any changes to that statement.  In accordance with section 7(2)(d) of the 1994 Act, I am required to order the employer to pay compensation of “such an amount (if any) as is just and equitable, having regard to all the circumstances, but not exceeding 4 weeks’ remuneration…”  It is my view that the maximum award of four weeks’ pay is just and equitable in the complainant’s circumstances. 

CA-00064404-003:  Complaint under Protection of Employees (Fixed-term Work) Act 2003

The complainant claims that her contract of employment was terminated “a few times” without explanation.  I understand from the evidence of Ms Warren that the complainant was employed from August 29th 2023 until she resigned on January 8th 2024.  I accept that her contract was terminated following the mid-term break in October 2023.  She was re-hired then on November 6th and paid for the mid-term break.  Her contract was terminated again on December 22nd and she was re-hired on January 8th and paid for the Christmas holidays.  This unsatisfactory situation was due to the fact that the complainant indicated in July 2023 that she was qualified to teach in a primary school, when she was qualified to teach in a secondary school.

CA-00064404-004:  Complaint under the Payment of Wages Act 1991

The complainant claims that she wasn’t paid for the mid-term break at the end of October 2023.  This complaint has been submitted against the wrong respondent and has been adjudicated on against the correct respondent under ADJ-00052589, complaint reference CA-00064405-001.

CA-00064404-005:  Complaint under the Payment of Wages Act 1991

The complainant claims that she wasn’t paid for the summer holidays in 2024.  This complaint has been submitted against the wrong respondent and has been adjudicated on against the correct respondent under ADJ-00052589, complaint reference CA-00064405-002.

CA-00064404-006:  Complaint under the Organisation of Working Time Act 1997

The complainant claims that she didn’t get her holidays because the conditions of her contract were breached and she had to leave.  This complaint has been submitted against the wrong respondent and has been adjudicated on against the correct respondent under ADJ-00051200, complaint reference CA-00062713-005.

CA-00064404-007:  Complaint under the Payment of Wages Act 1991

The complainant complains that she was not paid the correct rate of pay, although she claims that she had the required qualifications.  This complaint has been submitted against the wrong respondent and has been adjudicated on against the correct respondent under ADJ-00052589, complaint reference CA-00064405-001.

CA-00064404-001 and CA-00064404-002:

Complaints under the Terms of Employment (Information) Act 1994

I decide that these complaints are well founded.  Circular 33/2024 published by the Department of Education shows that the first point of the pay scale for an unqualified primary school teacher with effect from January 1st 2024 is €34,815.  I direct the respondent to pay the complainant compensation of €2,700, equivalent to approximately four weeks’ pay.  As this award is compensation for a breach of a statutory right, it is not subject to deductions for tax, PRSI or USC.

CA-00064404-003:  Complaint under Protection of Employees (Fixed-term Work) Act 2003

CA-00064404-004:  Complaint under the Payment of Wages Act 1991

CA-00064404-005:  Complaint under the Payment of Wages Act 1991

CA-00064404-006:  Complaint under the Organisation of Working Time Act 1997

CA-00064404-007:  Complaint under the Payment of Wages Act 1991

I decide that these complaints are not well founded.

Wages, holiday pay, written statement of terms and conditions of employment