EMPLOYMENT APPEALS TRIBUNAL
Noreen Timothy T/A Hazy Days Country Playschool
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms B. Glynn
Members: Mr. D. Morrison
Mr M. McGarry
heard this claim at Castlebar on 18th November 2016
Claimant: In Person
Respondent: Mr. Bob McArdle, Patrick J Durcan & Co, Solicitors, James Street, Westport, Co Mayo
The determination of the Tribunal was as follows:-
(Note: All letters, circulars and minutes referred to at the hearing were read into the Tribunal record)
The respondent gave evidence.
The claimant was employed as a childcare assistant in the respondent’s pre-school from the 8th of May 2000 until her employment terminated on the 26th of June 2015. The pre-school had twenty two children in attendance and three staff. The respondent explained to the Tribunal that she had a level 7 qualification at the time, another Assistant (A) was qualified to level 5 but the claimant had no formal qualifications but had fifteen years experience in the business. The witness stated she was now qualified to level 8.
In 2014 the respondent applied for the Higher Capitation Fee. In order to receive this grant the regulation stipulated:
“A higher capitation fee is payable to pre-school service providers where all the pre-school service hold a nationally accredited major award in Early Childhood Care and education at level 7 on the National Framework of Qualification (NFQ) or equivalent and have 3 years experience working in the sector, and where all the pre-school assistants in the service hold a relevant major award in childcare/early education a level 5 on the NFQ or its equivalent.”
In 2014 a circular was distributed from the Department of Children and Youth Affairs regarding increased qualification requirements. These new qualification requirements were:
“Increase the minimum qualification for all pre-school leaders delivering the ECCE programme from level 5 (on the National Framework for Qualification) to level 6.
Introduce for the first time a minimum qualification of level 5 on the National Framework for Qualification for all staff working with children in the early years service.
These qualification requirements will be phased in. ECCE contracts are entered into for a period of two years, and the next contractual cycle will commence in September 2014. The new qualification requirements will apply to all new services from that date, and to all existing services by September 2015”.
The respondent told the Tribunal that there was a lot of discussion in the pre-school regarding the circular. She explained that to achieve a level 5 qualification in childcare would take a year full-time or two years part-time.
Another option was available called the “Grandfathering Declaration”. This declaration gave the employee an exemption after September 2015 from the requirement to have a level 5 qualification. It stated:
“Any early years staff member (other than the ECCE room leader) who as yet does not have a Major Award at L5 and who intends to retire from working in the sector within seven years (i.e. before September 2021) will be eligible to sign this declaration.”
The respondent told the Tribunal that she felt the claimant would not be eligible for this option as she thought she was too young.
The respondent said the issue of the qualification was discussed with both A and the claimant. She told the Tribunal that she decided that after 40 plus years she decided that she would like to take more time off. To do so she would have to have a staff member of at least a level 7 qualification to cover her any time she wanted to take off. She made the decision to employ a level 8 qualified person and make the claimant and A redundant.
She met the claimant on the 20th of April 2015 to discuss the issue in full and informed her she was to be made redundant as and from the 26th of June 2015.
Correspondence crossed between both parties regarding the redundancy payment and monies owed due for holiday pay. The respondent told the Tribunal that the claimant never raised any issue regarding her redundancy being unfair. The claimant was made redundant and paid her statutory entitlement.
When asked by the Tribunal the respondent explained that it would take a person at least four years to qualify to level 5.
The claimant gave evidence. She agreed she did not have any formal qualification in childcare but did have 15 years experience.
She told the Tribunal that there had been no discussions of her getting any qualifications. She stated that at the meeting of the 20th of April 2015 the respondent only read out the minutes that were opened to the Tribunal.
The claimant said that she had sought information regarding the Grandfathering Declaration and was informed that she could sign up for it as long as she did not work in childcare after 2021. She explained to the Tribunal that she was unable to sign up as the respondent was letting her go.
The claimant gave evidence of her efforts to mitigate the loss of her earnings.
Under cross-examination she agreed that she had never raised an issue in any of her letters to the respondent that her redundancy was unfair.
The claimant stated that after January 2015 the atmosphere in the pre-school changed and it “wasn’t a nice place to work in”.
When asked, the claimant agreed she had accepted the cheque for her redundancy payment. She also admitted that she accepted that the reason for making her redundant was genuine.
The case before the Tribunal is to determine whether the claimant was unfairly selected for redundancy.
Following the circular from the Department of Children and Youth Affairs all staff employed in the industry must have a qualification of level 5. The claimant agreed she did not have this.
Having heard the sworn evidence and submission adduced the Tribunal finds a genuine redundancy took place. Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal