INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
- AND -
(REPRESENTED BY KOD LYONS SOLICITORS)
Chairman: Mr Hayes
Employer Member: Ms Doyle
Worker Member: Ms Tanham
1. Appeal of a Rights Commissioner’s Recommendation r-126331-ir-12/EH.
2. The Claimant has been employed as a Special Needs Assistant (SNA) since 1stOctober 2003. The Claimant’s hours were cut from 32 to 24 per week as a result of her medical incapacity to carry out a particular procedure required of her. The Claimant also maintained that the particular procedure was outside the scope of the duties of an SNA.
- The Employer said that the disputed procedure was an integral duty of an SNA and that the Claimant’s hours were cut to allow for the recruitment of an SNA who was medically fit and willing to carry out procedure.
This matter was referred to a Rights Commissioner for investigation and Recommendation. On the 10thJanuary 2013 the Rights Commissioner issued a recommendation that in relevant part states-
I find that the claim is not well founded.
I recommend that this calms fails
On the 20th February 2013 the Claimant appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 24th July 2013.
3. 1. On 1st September 2012, the Claimant’s hours were cut from 32 to 24 per week. There are seniority rules in place that take effect when the allocation SNA hours is reduced. These are set out in the Department of Education and Skills circular 0059/2006. The Claimant was the third most senior SNA in the school had her hours reduced in contravention of the circular.
2. With effect grom the 27th September 2011 the Claimant was certified medically unfit to carry out the disputed procedure. Medical certification was provided to the school and is not contested.
3. The nature of an SNA’s duties is set out in appendix 1 of the contract of employment. The Claimant asserts that the disputed procedure does not come within the scope of the duties therein outlined.
4. 1. All of the SNA’s employed by the school are trained to carry out the disputed procedure. The Claimant was simularly trained but was both unwilling and medically unable to carry out the disputed procedure. .
2. As a consequence the school was placed in a difficult situation. It requires 3 SNA’s present at all times who are both trained and willing to carry out the disputed procedure.
3. The Claimant’s hours were cut by 8 hours per week to allow the school employ an additional SNA to meet this need.
The case comes before the Court by way of an appeal against Rights Commissioner Recommendation No r-126331-ir-12/EH delivered on 10 January 2013. The case came on for hearing on 24 July 2013.
The Court has carefully considered the comprehensive written and oral submissions of both parties to this dispute.
Based on those submissions the Court finds that there is merit in the Worker’s claim. The Court finds that, in all the circumstances of this case, the School’s decision to reduce her weekly working hours from 32 to 24 was not justified and cannot be supported. The Court notes that the Complainant suffered a significant loss of income as a result of that decision and continues to do so as, to date, she continues to be employed on a 24 week.
Accordingly the Court has decided to uphold the Worker’s claim to have her working hours restored to 32 hours per week. The Court also upholds her claim to be paid compensation in the sum of €7,628.32 for the income she lost as a result of the decision to reduce her working hours.
The Court so decides.
Signed on behalf of the Labour Court
19th August, 2013.Deputy Chairman
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.