Complainant

Respondent

Parties

Mary  Lynch

Donore National School

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-Represented

Kevin Roche B.L. instructed by  Mason Hayes and Curran LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00060990-001

15/01/2024

The Complainant commenced employment with the Respondent on the 20th January 2003. She was employed as a part-time primary school resource teacher until her retirement on the 31st August 2023. She referred a complaint to the Workplace Relations Commission (hereinafter referred to as “the WRC”) on the 15th January 2024 wherein she claimed that she was penalised for invoking entitlements under the Protection of Employees (Fixed-Term Work) Act 2003 (hereinafter referred to as “the 2003 Act”) and that the within complaint was a continuation of the complaint referred by her to a Rights Commission in 2011. The Respondent denied the complaint in its entirety. By way of a preliminary issues the Respondent submitted that the complaint was res judicata and that it was referred to the WRC outside of the statutory time frame.

Preliminary Objection – Time Limits

The Complainant submitted that her complaint was not out of time and she made the following submission:

I submit that my complaint of penalisation by the Respondent to the WRC is within the 6 month time limit on the following grounds:

1.       I only became aware on 18/12/2023 through the response received to a Freedom of Information request that unqualified personnel were extensively employed by the school from 2014 to 2023. Up until that time I had assumed that all teaching staff recruited and employed at the school since 2010 had been primary qualified teachers as offered in evidence by the school at the 2011 Rights Commissioner hearing as the reason why I was no longer offered any further substitution work. This was also offered as the reason I was refused additional teaching hours in 2016. The FOI response received on 18/12/2023 was the first time I became aware that the school had in fact employed unqualified staff, contrary to their stated position. As the penalisation was invisible to me until that time, I submit that 18/12/2023 must be regarded as the date of contravention for my complaint submitted on 15/1/2024, less than 1 month later.

2.       I was awarded a lump sum gratuity and pension from 1/9/2023. The amounts awarded were significantly less than they would have been had the substitution work not been taken off me from 13/10/2010 and the additional teaching hours denied to me in 2016. I submit that 1/9/2023 be taken as the date of indirect penalisation in the form of the reduced pension and gratuity caused by the unfavourable change in my employment conditions after seeking my CID.

3.       I originally made my complaint of penalisation in 2011 and this was within the time limit. At the Rights Commissioner hearing on 26/8/2011 no decision on the complaint was made but it was withdrawn by agreement on the basis that the school would only be recruiting primary qualified teachers as per Dept. of Education instructions. This has been shown to be a complete fallacy by their subsequent extensive employment of unqualified staff. I submit that my complaint of 15/1/2024 must be allowed as the original complaint was defended on what has been subsequently shown to be a complete falsehood.

4.       In 2022 the school was allocated English as an Additional Language (EAL) teaching hours in response to the arrival of Ukrainian pupils. I had in the past been given teaching hours in this field but on this occasion was not made aware of the additional hours nor was I offered them. I had assumed the teacher recruited to work these hours was a qualified primary teacher. It was only when I discovered that the school had been employing unqualified staff, contrary to all previous assurances, that I checked into the matter in mid January 2024 when preparing my submission of complaint to the WRC. The Teaching Council register shows the individual employed to teach these hours to have been unqualified at the time. I submit that I only became aware of this further act of penalisation in January 2024 and it was included in my submission of 15/1/2024, well within the 6 month time limit.

5.       Because of all of the points made above I would submit that to rule my claim to be outside of the WRC time guidelines would, in fact, breach the principles of fair procedure and natural justice.

Preliminary Objection – Time Limits

By way of preliminary objection the Respondent submitted that complaint referred to the Director General in the within case is out of time. As such, the Adjudication Officer does not have jurisdiction to embark upon the hearing of this matter.

It was submitted that this issue be decided in advance of any further legal argument as it has the potential to dispose of the issues between the parties and will ultimately save time and costs.

Section 14 of the 2003 Act permits complaints to be referred to the WRC in accordance with section 41 of the Workplace Relations Act 2015 (the 2015 Act).

Section 41(6) of the 2015 Act provides: Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Section 41(8) provides: An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

It is open to the Oireachtas, by means of primary legislation, to prescribe certain modifications to the time scale in which to bring proceedings before the WRC. For example, section 77(5)(a) of the Employment Equality Act 1998 provides that: Claims for redress in respect of discrimination or victimisation may not be referred after the end of the period of six months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

However, no such provision is contained within the 2003 Act. This evinces a deliberate intention on behalf of the Oireachtas that claims arising under the 2003 Act be brought within 6 months beginning from the date of the contravention of the Act.

The Respondent is a co-educational, primary school situated in Donore, Co. Meath. The Complainant was in the employ of the Respondent on a part time basis from 2003. The Complainant is a qualified secondary school teacher and is registered with the Teaching Council. The Complainant does not possess qualifications in respect of primary school teaching. On the 1 November 2010, following a request from the Complainant, she was provided with a Contract of Indefinite Duration (CID). The Complainant retired on 31 August 2023. For the avoidance of doubt the Complainant was at all times a permanent, part-time employee of the Respondent school. The CID was reflective of the terms and conditions which had at all stages governed the employment relationship between the Complainant and the Respondent. In light of the foregoing the Respondent submitted:

a. The alleged contravention of the 2003 Act (which is denied) would have occurred in 2010.

b. As such, the complaint, having been brought some 14 years later, is outside of the time period allowed by the 2015 Act.

c. No application has been made to extend the time in which to instate these proceedings

d. Even with such an extension, the proceedings would be outside of the time limit provided by the 2015 Act.

In making these findings, I have considered the documentation submitted by the parties pre and post hearing, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

The Law:

Preliminary Decisions:

In Brothers of Charity (Roscommon) Ltd. v. Marian Keigher EDA1014, the Labour Court considered the determination of an issue by way of preliminary decision. The Labour Court referred to the judgments of Kenny J. in Tara Explorations and Development Co. Ltd v. Minister for Industry and Commerce [1975] IR 242 and Hardiman J. in B.T.F. v. Director of Public Prosecutions [2005] 2 I.L.R.M. 367. In the latter case Hardiman J, found:

"It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary matter. In a case where a point is raised which in and of itself and without regard to anything else may terminate the whole proceedings, clearly a strong case can be made for its trial as a preliminary issue. The classic example is where the Statute of Limitations is pleaded.”

In Donegal Meat Processors v. Donal Gillespie t/a Foyle Donegal, UDD2114, the Labour Court noted that, seeking for the substantive issue and the jurisdictional issue to be dealt with together was:

“akin to asking the court to exercise its jurisdiction before it determines whether or not it has jurisdiction in the first instance. […] Only if the court determines that it has jurisdiction to do so can it go on to consider the fairness or otherwise of the dismissal itself”.

Having regard to the fact that I am obliged at all times to consider that which constitutes the most efficient and effective use of the resources of the WRC and following the caselaw outlined above I find that there is a “strong case” for determining this matter by way of preliminary decision.

Preliminary Issue: Time Limits

The first matter I must decide is whether the complaint was referred within the statutory time limit.

The within complaint was referred to the WRC on the 15th January 2024 under section 14 of the 2003 Act in relation to a contravention of section 13 of the 2003 Act. Section 13 of the 2003 Act provides as follows:

“13(1) An employer shall not penalise an employee—

(a) for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part,

(b) for having in good faith opposed by lawful means an act which is unlawful under this Act,

(c) for giving evidence in any proceeding under this Act or for giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a) or (b), or

(d) by dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3).

The time limit for the referral of a complaint under the 2003 Act is governed by 41 of the Workplace Relations Act 2015 (hereinafter referred to as “the 2015 Act”).

Section 41(6) of the 2015 Act provides:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

This six-month time period can be extended, where reasonable cause is demonstrated. To this end, section 41(8) of the 2015 Act provides:

“(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

In the instant case it is not in issue that the Complainant sought and was granted a Contract of Indefinite Duration (hereinafter referred to as “a CID”) in 2010. The Complainant claimed that from the 13th October 2010, when she sought the CID she was not offered any substitution work. On the 13th April 2011 she referred a complaint to the Labour Relations Commission under the 2003 Act alleging penalisation and a Rights Commissioner hearing was held on 29th August 2011. On that day the complaint was withdrawn and the parties entered into a written agreement. The Complainant continued in her employment with the Respondent and retired on the 31st August 2023. She claimed that it was only after her retirement that she discovered that unqualified personnel were being given teaching hours.

The Respondent submitted that the date of the contravention to which the complaint relates is the 13th October 2010 and that the complaint was referred to the WRC outside of the statutory 6-month time limit provided by Section 41(6) of the 2015 Act and given that an extension of time may only be granted up to 12 months under Section 41(8) of the 2015 Act it is absolutely statute-barred. The Complainant contended that the complaint was referred to the WRC within the statutory 6-month time period, that the within complaint was a continuation of the complaint referred by her to the Labour Relations Commission in 2011 and that time began to run from the date of knowledge. There was no application by the Complainant to extend the time period.  

The wording of section 41(6) of the 2015 Act is very specific. Unlike other legislation, the 2015 Act does not prescribe certain modifications to the time scale in which to bring proceedings before the WRC such as in section 77(5)(a) of the Employment Equality Act 1998 and/or make provision for the referral of a complaint from the date of knowledge of an alleged contravention and/or where delay in the referral of a complaint to the WRC is due to a misrepresentation by the employer such as section 77(6) of the Employment Equality Act 1998.

In the circumstances I find that as this complaint has been referred to the WRC in excess of 12 months from the date of the alleged contravention I do not have jurisdiction to either extend the time and/or investigate same.

For the reasons set out above I decide that this complaint was referred outside the statutory time frame pursuant to section 41 of the Workplace Relations Act 2015 for referring a complaint to the Director and therefore I have no jurisdiction in the matter. 

In the circumstances the complaint is not well founded.