ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00002702
A Government Department
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Closed May 9, 2016
Date of Adjudication Hearing: 12 October 2016 and 4 April 2017
This case is linked to ADJ 3507
Workplace Relations Commission Adjudication Officer: Patsy Doyle
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 27 of the Organisation of Working Time Act, 1997, Section 7 of the Terms of Employment (Information) Act 1994 and Section 13 of the Industrial Relations Acts 1969, following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute.
The complainant is a Primary School Principal who has named two respondents in a three item claim relating to his terms of employment as an Administrative Principal in 2009. For the purposes of this claim the respondent is a Public Service, which has denied both respondent status and any resulting liability for the claims. This case was heard conjoined with ADJ 3507 which named the Board of Management as the second Respondent.
Summary of Complainant’s Case:
The complainant commenced work as a Teacher in a Primary School on 1 September 2003.He acted as Principal for 5 years and became Administrative Principal in 2009. In 2008, the School took on the pupils from a neighbouring school, which closed without extra supports.
The complainant submitted that during the 2011/2012 school year, he was advised by his Union that the school would lose 1 teacher as result of not having enough resource hours to maintain the 11 th teacher. The role of Administrative Principal was to be maintained regardless. A number of weeks later, the respondent confirmed that the school was to lose
In May 2012, the Union told the complainant that a Representative from the respondent was to call with good news. The complainant gave direct evidence that this was anticipated to be an important call and the Deputy Principal and another teacher were in attendance in the room when the phone was placed on speaker when Ms APO (Assistant Principal Officer) called on May 8, 2012.
The complainant submitted that he had been unconditionally promised that he would retain the Administrative Principal ship for as long as he was the post holder at the Primary School at the centre of the case. This was to be the case regardless of pupil numbers, staff numbers, existing rules or circulars. The complainant submitted a written record of the course of the telephone call.
The complainant told the hearing that he retained this arrangement over the course of academic years 2012, 2013 and 2014 until the respondent withdrew the Administrative Principal ship in September 2015 .This resulted in a loss of
The complainant submitted that efforts to overturn the decision had failed and the Respondent issued the final word on the withdrawal of the Administrative Principal in November 2015.He contended that Ms APOs’ assurances regarding the retention of he position had at least ostensible authority to bind the Respondent .
1 Complaint Under Terms of Employment ( Information) Act, 1994
The complainant submitted that his appointment as Administrative Principal arose by an oral communication .He added that he was subsequently informed that he would always retain that status whilst Principal of the named school .He had not been issued with any written confirmation of the change in his terms and conditions of employment, while the changes were manifested in him being permitted to hire an additional teacher and for him to cease full time teaching in favour of administrative duties .He sought the retention of the title of Administrative Principal as redress in the case .
2 Complaint under Organisation of Working Time Act , 1997
The complainant submitted that he now worked in excess of 60 hours a week as a consequence of the withdrawal of the Administrative Principal status .This consisted of 5-7 hours contact time in class, inclusive of preparation and supervision and the time necessary for administration of the school.
3 Dispute Under Industrial Relations Act , 1969
The complainant submitted that he had been treated unfairly by the respondent in relation to the withdrawal of the Administrative Principal set against an assurance of a tenure in the role .He contended that there had been a significant breach of trust between the respondent and him, causing him to fear constructive dismissal, difficulty seeking re-employment at Principal level, given that the respondent has a virtual monopoly of the kind of employment for which he was best qualified.
The Hearing of 12 October, 2016 was adjourned to allow for a direct engagement, which was unsuccessful in reaching a resolution .The complainant sought a decision in the case and made the following supplementary submission at the hearing on 4 April 2017 and by way of a supplementary submission dated 11 April, 2017.
1 The complainant had not based his complaint under the Industrial Relations Act, 1969 as he understood that he was excluded from the definition of a “worker” for the purposes of pre 1990 Industrial Relations legislation. He submitted that his complaint be dealt with as a matter of contract law.
2 The complainant submitted the current duties attached to his position and submitted the distinction between the role of Teaching Principal and Administrative Principal.
3 The complainant made further submissions on the respondent being the correct respondent in the case relying on the High Court case of Dept. of Education and Skills V Ann Boyle, which had stated that the case of Boyle was rooted in the “unique Constitutional arrangements for Education in this state involving a tri partite relationship between the Respondent and the respondent funded teacher and school”.
4 The Complainant recalled the circumstances surrounding the phone call received from Ms APO on 8 May , 2012 and clarified that the document submitted in evidence of the call was “ an accumulation of notes “ and not a taped recording.
5 The complainant made a final submission to seek the retention of the Administrative Principal for the school in the best interest of the school population. He made extensive submissions on this point.
Summary of Respondent’s Case:
The respondent submitted that it is not the employer and contended that it was not an appropriate respondent in respect of the claims lodged. The respondent had objected to the referral under the Industrial Relations Act 1969, on 27 April, 2016.
The respondent explained that they operated a payroll service of teachers and principals on behalf of Boards of Management and have statutory function in the setting of terms and conditions for school principals, the respondent is not the employer for the purposes of either :
1 Terms of Employment( Information ) Act, 1994
2 Organisation of Working Time Act 1997
As per the definition of “ employer “ in both of the Acts :
“Employer “in relation to an employee, means the person with whom the employee has entered into and for whom the employee works under a contract of employment.
The Respondent drew the attention of the hearing to Section 24 of the Education Acts, 1998 to 2012 and submitted that a Board of Management manages the school on behalf of the patron.
Subject to this section, the board of a recognised school –
(a) Shall, if not already appointed. appoint a person to be Principal of the school and
(b) May appoint such and so many persons as teachers and other staff of the school as the board from time to time considers necessary for the performance of powers and functions under this Act.
Section 24 (2) The numbers and qualifications of the teachers and other staff of a recognised school , who are , or who are to be remunerated out of monies provided by the Oireachtas ,shall be determined from time to time by the Minister , with the concurrence of DPER.
The Respondent submitted some background to the case. In Ireland, the distribution of the population has necessitated a relatively large number of small primary schools. In schools with less than 177 pupils, management and administrative duties for Principals are expected to be undertaken in addition to their full time teaching duties.
Teaching Principals in these smaller schools are provided with release time in order to assist Principals in fulfilling their principal duties .The School in this case is regarded as a P+4 schools where the Principal is permitted 20 release Administrative days in the current school year.
This is distinct from the role of an Administrative (Walking) Principal, which is appointed to larger schools with in excess of 177 pupils. With effect from the academic year 2012/2013, the criteria for the appointment of Administrative Principals were based on pupil numbers The staffing schedule is undertaken on an annual basis and supported by a Circular.
The School at the centre of the case had a Roll Call of 164 pupils in 2009 which has since fallen to134 in 2015 and 131 in the academic year of 2016 .The school was permitted to retain the Administrative Principal status, which it held from 2008 to 2011 as an exception measure for the academic years
2012, 2013 and 2014.
The role of Administrative Principal and the associated teaching position was withdrawn for the academic year 2015.
The respondent outlined that 54 primary schools held Administrative status under “ the historical rule” in 2012 .Six have since amalgamated .20 continue to retain the status under the historical rule .26 schools have lost the status and 2 have acquired Administrative status under he revised 2012 rules. The respondent submitted that there was sufficient provision for the Administrative function to be absorbed by the existing cohort of existing teachers and Deputy Principal.
The Respondent quoted from the “ Historic Rule “ necessary to retain an Administrative Principal
Principal Teachers in schools with an enrolment of fewer than 178 pupils but with a staffing of Principal plus nine or more teachers , when all ex quota posts are counted , may be appointed as Administrative Principals
The respondent cited extensive case law in support the contention that the complainant was properly employed by the Board of Management of the School and not by the respondent .The respondent is not party to the contract. The respondent contended that the Board of Management was responsible for recruitment, selection, appointment, discipline and dismissal of staff and was not an agent of the Minister.
Irish Supreme Court O Keeffe V Hickey ,  2 302 where Hardiman J examined the relationship between the Respondent and a teacher and refuted an employment relationship between the Minister and the teacher .
Irish Supreme Court, Crowley V Ireland Kenny J held that teachers were not employed by the State.
Tobin V Cashel in the case of a challenge to a dismissal of a former teacher , where the Irish High Court was satisfied that the “ Applicant was employed by the Chairman and Secretary of the board of Management ,who purported to dismiss him “
Mc Sherry V Board of Management of Scoil Chriost Ri
Josephine Bleach V Board of Management of Our Lady of Immaculate Senior School And DES ( Dec –E2003/028)
1 Complaint Under Terms of Employment( Information ) Act, 1994
The respondent disputed any breach under the Act. The criteria for the allocation of posts are communicated to school management annually and are made available on the respondent website A letter issued from the Respondent to the Chairperson of the School Board of Management on 21 February 2013, outlining the Respondent’s intention to suppress the Administrative Principal post at the school, which was varied as an exceptional measure for 2013 and 2014 school years. As the School could not meet the “historic rule” criteria and the pupil enrolment continued to drop, the position was withdrawn in 2015. The previous Chair of the Board of Management signed the redeployment forms in respect of two teachers and submitted same to the Department. This operationalised the decision .
2 Complaint Under Organisation of Working Time Act ,1997
The respondent disputed any breach of the Act. The respondent submitted that the school was not entitled to retain the position of Administrative Principal. The School has its approved complement of Teachers and there is provision within that number to assist the administrative process to avoid the complainant working a 60 hour week.
The respondent submitted a supplementary submission on 9 November 2016, seeking that the case go to decision as the enrolment stood at 121 as at 30 September 2016 and the “ concession of Administrative Principal “ as a result of the nearby school closure is no longer warranted .
The respondent attended the reconvened hearing on April 4, 2017 and agreed to review the recent case of The Minister for Education and Skills V Anne Boyle  IECA 39
On 13 April 2017, the Respondent made a final submission :
1 In the case of Minister for Education V Anne Boyle  IECA 39,.the respondent confirmed that an appeal was being pursued at the Supreme Court
2 The transcript of May 8, 2012 conversation resembled a taped version rather than a written record.
3 The School satisfied the criteria for Administrative Principal in 2009 when it received 29 pupils and additional teachers when the school closed. This criteria changed in School year 2012 and the Complainant was permitted to retain the title of Administrative Principal for a further 2 years when the enrolment decreased in 2013.
There are currently 400 schools with enrolment greater than the complainant’s school but less than the 177 pupil ceiling required for Administrative Principal status. The Respondent contended that the Staffing schedule adopted on an annual basis was equitable and the complainant could not properly be classified as an Administrative Principal based on the current or short term projected pupil head count as that would be inequitable.
The Respondent outlined that significant local interest had arisen from Political Representatives in respect of the post but the criteria were applied justly in accordance with the circular.
Findings and Conclusions:
I have given the parties the opportunity to be heard in this case and to present any evidence in support of the positions adopted.
There is a Preliminary Issue to be decided in this case , that is :
Whether the Respondent is properly identified as the employer in the case of the two complaints, given that the complaint under the Industrial Relations case closed in May 2016?
Preliminary Issue :
The complainant has submitted that the Respondent should be recognised as his employer for the purposes of the Act. The respondent disputed this relying on extensive case law is support of the stated position.
I began by considering both submissions, both oral and written. It did not help matters that the complainant was not in possession of any type of contract of employment.
On the second day of hearing, the complainant produced a “Form of Agreement” signed on 1 November2016 on behalf of the School .This named the National School and detailed 6 components of a Memorandum of Agreement .This document read to me as a type of enabling document but it did not comply with the requirements of Section 3 of the Act and as such I could not establish that it was determinative of an employment relationship.
I considered the submissions of the respondent on seeking that the Board of Management be properly recognised as the employer in this case .I began to have reservations on this submission when I considered the major role played by the Respondent in the evolution of the case before me.
I accept that an amalgamation of two Primary Schools led to the genesis of the Administrative Principal in 2008/9. I found that this merger was overseen and operationalised by the Respondent.
The Respondent, in my opinion maintained a high profile throughout the next number of years when the population of the school fell. All actions on supply of teachers were presided over by the Respondent, by way of Administrative Circulars with the school management appearing in a supporting role.
I appreciate that the system of formalising the criteria for supply of teacher numbers / Scope of Principals changed via Administrative Circular in the academic year 2012 and I found a subsequent lack of clarity in any official transitory arrangements specific to the complainant .
Instead I found that the school was permitted by the Respondent to maintain the Administrative Principal position until September 2015. This confirmed to me that the Respondent was really the main player in terms of the Administrative allocation of Teachers and Principal. I found no evidence that the School had an identifiable foothold on this.
This brought me to explore the parameters of the definition of employee under the Legislation. Section 1 of the act defines
“ employee” means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of this Act, a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act , 1956 shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority for the purposes of the Local Government Act , 2001 (as amended by the Local Government Reform Act 2014) , a harbour authority, a health board or an education and training board shall be deemed to be an employee employed by the authority or board as the case may be;
“ employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “ contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer;
I found that the complainant could be recognised as a potential employee of both the school and the respondent from an initial reading of the Act.
I then considered the cases of Hickey and Crowley as advanced by the Respondent and noted that they referred to vicarious liability in Tort.
I considered recent case law in Dooley v Catholic University School  IEHC 496 and. Blackrock College V Mary Browne  IEHC 607 where the definition of a part time employee was considered in the course of a cause of action under that Legislation.
I found that Hogan J held in Boyle that Section 1(2) to Section 1(7) of the Protection of Employees (Part time) Legislation is to be construed as one with several different items of employment legislation such as the instant Act.
In Boyle, the Court of Appeal held that Ms Boyle had two employers, the Respondent on implied terms and the school for express terms. It is of note that 98% of Ms Boyle’s salary was paid to the school management committee rather than to her directly as her school was not a recognised school under the 1965 rules for National Schools.
Both parties in the instant case confirmed that the school was a recognised National School and this is reflected in the “November 2016” Agreement with the school .This causes the facts to differ somewhat to Boyle.
I also considered the parameters of the definition of a Public Servant in FINANCIAL EMERGENCY MEASURES IN THE PUBLIC INTEREST (NO. 2) ACT 2009 and found that the complainant could be safely recognised as a Public Servant, which suggests at least a differential from an employee of a Board Of Management.
I then consulted Section 24(3) of the Education Act , 1998 and noted that it provides that the terms and conditions of employment of teachers paid by monies provided by the Oireachtas
“ shall be determined from time to time by the Minister for Education and the Minister for Public Expenditure and Reform”
. Section 24(6) of the Act provides that
“ where all or part of the remuneration or superannuation or both of the Principal……is paid out of monies provided by the Oireachtas , such remuneration and superannuation shall be determined from time to time by the Minister and Minister for Public Expenditure and Reform .”
I have also considered the EAT case of Blackbyrne V Thomas Pringle and Houses of the Oireachtas  25 ELR 153,where the Oireachtas was released as a second respondent where the first respondent retired from Office. The Tribunal concluded that in order to fix employer status on the second respondent,the complainant would have to establish an intention in that regard . In the instant case , I found that the Respondent engineered the prime events and communiques which evolved in the case ,starting with the amalgamation of the schools, followed by the preservation of the Administrative Principal as a parallel entity 2012-2015 and concluding with the contested withdrawal of the position in September 2015.
Therefore I Conclude that
In accordance with Boyle , I must find that the complainant has the “ unsatisfactory “ title of two employers “ uniquely split”
For the purposes of remuneration and setting terms and conditions of employment: I have identified The Respondent as the correct respondent.
For the purposes of hiring, discipline, dismissal and general day to day running of the school: I have identified The Board of Management of the School as the correct respondent.
Therefore, I find that on this Preliminary Point, The Respondent is identifiable as a correct respondent in the claim.
Findings and Conclusions on Substantive Complaint:
1 CA - 00003669-001 Organisation of Working Time Act 1997
This claim refers to a situation which occurred within the every day running of the school.
I find that the Respondent is not the correct respondent for the purposes of this complaint and this complaint will be addressed in ADJ 3507 where the Board of Management of the school is the named respondent and the case is conjoined with ADJ 2702
Therefore, I find the complaint to be not well founded.
2 CA-00003669-02 Terms of Employment (Information) Act 1994.
I have considered both parties submissions in this case. I note that this complaint was lodged before the WRC on 5 April 2016. The date of contravention was referred to by the complainant as continuous from September 2015. The Respondent had disputed their purported title as employers .
Section 41(6) of the Workplace Relations Act , 2015 limits my powers to addressing a complaint within 6 months of the date of contravention or 12 months on “ reasonable cause “ . I did hear submissions from the complainant that the issue was live in the Political Fraternity and Union Representation arenas from 2012 onwards and further progress was anticipated from those circles up to date of claim and onwards to November 2015 .In addition , I note that the complainant is a Lay Litigant. I accept the reasons for the delay in submitting the claim to be rational and understandable and I grant the short extension in time under Section 41(8) of the Act.
I note that neither party was in a position to place a written statement of terms of employment either as a basic grade Teacher or Principal consistent with the requirements of the Act before me. Given that there was no dispute on the complainants start date of 2003 , I found this to be a stark omission and prejudicial to the complainant .
I appreciate that the Respondent had not accepted “ employer” status prior to the hearing , however, it was agreed that the complainant had been both a fully fledged teacher and Principal in accordance with rules for National Schools .In my opinion , there ought to have been some Individualised statement prior to that raised by the second named respondent ( the school ) on November 1, 2016.
The “Cinderella” Directive has been referenced in Employment Law, 1st Edition, 2014 by Frances Meehan.
The Council Directive on an employer’s obligation to inform employees on the conditions applicable to the contract or employment relationship, Directive 91/533, OJ L288/32as referred to as the “Cinderella” Directive and is also referred to as “proof of the employment relationship”
It was considered that information given by employers to employees about the main terms of their employment are a fundamental aspect of fundamental policy and that the Directive deserves to emerge out of obscurity to become a catalyst for reform. The Directive was the first Directive other than in the fields of health and safety and gender discrimination under the Commission’s Social Charter Action Programme. The preamble to the Directive recites point 9 of the Community Charter of Fundamental Social Rights for Workers adopted at the Strasbourg European Council on December 9, 1989:
The conditions of employment of every worker of the European Community shall be stipulated in laws, a collective agreement or a contract of employment, according to arrangements applying in each country.
I have considered both parties presentations in relation to the statement of terms of employment. I believe it would have helped the process enormously if the complainant had been furnished with a formal document during the transitionary process which linked pupil headcount to Administrative Status particular to the school in academic year 2012/2013.
Instead , It was accepted by the parties that a set of “ unspecified “ exceptional circumstances” without temporal limitation protected the Administrative Principal ship and consequent teacher post from the transition period until the Board Of Management signed the forms for redeployment of the teacher .This action did not require the consent of the Principal , but rather the Chairman of the School Board . However, it served to provide evidence of a variation in the 2012 nationally set criteria on Administrative Principal which resulted in a 3 year extension of the status quo.
I have given some thought to the document submitted as a record of a phone call between a retired Official of the Respondent , Ms APO and the complainant , Deputy Principal and Mr T ( present at the hearing ) .I asked the complainant in light of Data Protection Rules whether this was a taped conversation? and I was assured that it was not .
I found the context and background to the call to be unusual and lacking in formality and follow up documentation . Nonetheless, I accept from the evidence submitted that it occurred . The fact that this conversation happened in the absence of a representative of the purported employer, the Board of Management demonstrated a dis jointed approach that goes to the root of this case .
Both the complainant and Mr T gave evidence that the School was told by the Union to expect an important call and these were contemporaneous notes of that call. Ms APO was not available to the hearing, but the respondent produced an email from this Official dated 17 June 2015 signalling the forthcoming withdrawal of the Administrative Principal status in September 2015.
The complainant also submitted an information sheet on the 2012 transitionary arrangements to enrolment criteria informing Administrative Principals .This mentioned that schools adversely affected by the rule change could continue to keep their Administrative status until there was a change in Principal in the school, essentially a red circled arrangement .
The Respondent argued that there was a 2012 national strict correlation in enrolment to the preservation of Administrative Principal and that the School had fallen far below the pre-requisite of 177 pupils since 2011. The P4+ school category automatically prohibited the retention .
This took a 3 year period to take affect, during which time it was not disputed, the Complainant continued as Administrative Principal. I do not believe that I hold the power to recommend that the Department re-instate the Administrative Principal in concrete terms. I must confine my consideration to the parameters of the legislation .
The revision of the Administrative Circulars in 2012, did not in my opinion constitute a collective Agreement such as to negate Section 5(1) of the Act .
Notification of changes
- — (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
( b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.
(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute , other than a registered employment agreement or employment regulation order, ] or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under Section 3 or 4 .
I have found that the Respondent has breached the Act, where there was an omission in the obligations set down in Section 3 and Section 5 of the Act, when the Respondent did not address the complainant in written terms throughout this period. I accept that the contract of employment was of oral origin and compliant with Section 1 of the Act .
I have, however found that the complainant became missing placed in the tri partite employment relationship mentioned above and was prejudiced by this action. The communication seemed to originate with the respondent and rested with the School Board and did not appear to reflect the Individual requirements of the Act which arose from the Directive .
I have considered options of redress open to me. I did not receive any details of any concrete compliance with Section 3 and 5 of the Legislation , therefore , I have found that there has been a continuous breach of the Legislation from 2009 in relation to Section 3 and from September 2015 in relation to Section 5.
In accordance with Section 7 (2) (a) of the Act, I find the complaint to be well founded.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation
to the complaints and Dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 27 of the Organisation of Working Time Act, 1997 requires me to make a decision in the case.I have found his complaint to be against the wrong respondent and not well founded.
Section 7 of the Terms of Employment (Information) Act, 1997 also requires me to make a decision in this case. I have found, on the balance of probabilities that the complainant accepted an assurance from the Respondent that he would remain as Administrative Principal for as long as he remained in position as Principal. This went on to create legal relations between the parties under contract law.
I find that the justice of the case demands that I recommend that the Respondent gives or causes to be given to the complainant a written statement containing the sub headings of Section 3 of the Act, within 6 weeks of this decision.
In particular, I recommend that the title of the position be inserted as Administrative Principal in accordance with the assurances given by the Respondent and accepted by the complainant in May 2012 and operationalised to September 2015.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. Given the objection raised by the Respondent in this case, I do not hold the jurisdiction to investigate this dispute.
Dated: 15 June 2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Terms of Employment Excess Hours worked