EMPLOYMENT APPEALS TRIBUNAL
The Minister for Education and Skills
– respondent 1
Inver College – Respondent 2
Cavan & Monaghan ETB – respondent 3
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr D. MacCarthy SC
Members: Mr A. O’Mara
Mr F. Barry
heard this claim at Dublin on 24th October 2016
Claimant: Mr Mark Dillon of Dillon Geraghty & Co Solicitors, 16 Brews Hill, Navan, Co. Meath
Respondent 1: No appearance or representation
Respondents 2 & 3: Mr Enda O’Carroll of Wells & O’Carroll Solicitors, Carrickmacross, Co. Monaghan
The determination of the Tribunal was as follows:-
Despite being on notice of the Hearing, respondent 1 did not send a representative.
The solicitor for respondents 2 and 3 told the Tribunal that the ETB had been the claimant’s employer and it accepted responsibility for making her position redundant.
The claimant’s solicitor argued that, as the paymaster, respondent 1 ought to have been in attendance but the Tribunal had jurisdiction to find against them in their absence.
The solicitor for respondents 2 and 3 objected to re-instatement as a remedy, in the event of the claimant’s case being successful, because she had been made redundant and was paid a redundancy payment.
The Tribunal was minded to hear the evidence and would consider the question of redress if it arose afterwards.
The head of HR, PG, gave evidence. The claimant was employed as a supervisor at a second level school run by the training board. She is not a registered teacher and had once been employed as a music teacher and supervisor. At the time when her employment was terminated she was working as a supervisor only.
The Haddington Road Agreement and the associated Circular 0006/2014 from the Department of Education & Skills provided that supervision and substitution duties would no longer be paid for but would be subsumed into the role of teachers. As a result there was no role for the two sole supervisors at the school in question and they were made redundant.
The claimant was not consulted about her proposed redundancy in advance and neither was she considered for alternative roles or for re-training. PG did not know how many non-teaching roles were advertised by the training board in the year following the claimant’s redundancy but the claimant was not considered for any of them. The training board has no written policy for making an employee redundant.
When questioned by the Tribunal PG accepted that the Haddington Road Agreement did not demand redundancies and neither did the Circular but the claimant’s redundancy resulted from these agreements.
Supervision continues to be done but teachers are contracted to do it and a number of part-time teachers are paid to do the remainder.
In the event of the Tribunal finding in favour of the claimant the respondent’s representative stated that they would prefer compensation at the remedy.
The claimant gave evidence. She was approached by the school principal to direct a musical in 1999. She produced musicals until 2006 and taught music for three and a half hours a week until 2014. During an industrial dispute when teachers withdrew from supervision she and her daughter were both employed to supervise. Her daughter later obtained another job.
She had a contract of indefinite duration with the training board and expected to remain as a supervisor until retirement. She also supervises exams at the school.
She has been Garda vetted but is not a registered teacher. She studied music at Maynooth but did not complete her degree. She is not eligible for registration as a teacher because she does not have a Diploma in Education.
The claimant wrote to PG on 14 October 2014 querying her redundancy and seeking a discussion on redeployment. She got no reply. Supervision is ongoing at the school and a number of teachers were given extra hours just to supervise students.
The chief executive of the training board wrote to her on 17 October 2014 that school supervisors are not covered by the Haddington Road Agreement.
Her preferred remedy is re-instatement.
The Tribunal carefully considered the evidence adduced and the documents opened in this case. The fact of dismissal was not in dispute. The respondent argued that the claimant’s position was made redundant and therefore that her dismissal was not unfair. The claimant contends that the job she performed, namely supervision of students, continues to be done and therefore her dismissal did not result from a genuine redundancy.
When an employer is terminating the employment of an employee it is incumbent on that employer to effect the termination by recourse to fair and open procedures. In this case the respondent accepted that such procedures were absent. Further, the respondent jumped to the conclusion that the Haddington Road Agreement required it to make the claimant redundant while in fact there is no such compulsion in the terms of the Agreement.
In this situation, where the respondent has not shown that a redundancy situation existed, where no procedures were in place and where the claimant has a document confirming that her employment was not covered by the Haddington Road Agreement the Tribunal must find in favour of the claimant.
The claim under the Unfair Dismissals Acts 1977 to 2007 succeeds and the Tribunal orders the re-instatement of the claimant which, under the terms of the Act, is deemed to take place on the date of dismissal. Also, under the terms of the Act the redundancy lump sum is required to be repaid.
Sealed with the Seal of the
Employment Appeals Tribunal