Worker

Employer

Anonymised Parties

A Teacher

A Post Primary School

Representatives

Des Kavanagh Des J. Kavanagh HR Consultancy Limited

Ann Marie Dillon

Association of Community & Comprehensive Schools

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00003212

30/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00003213

30/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00003214

30/09/2024

The Complainant commenced employment with the Respondent with effect 28 August 2017.  The Complainant contended that he was being treated in a less favourable manner than a comparable permanent employee as he was not being afforded incremental credit. Additionally, he alleged that he had a trade dispute as he was denied access to incremental credit and remained on the first point of the pay scale despite providing excellent service during 7 years of employment.

The Respondent is a secondary school.  The Respondent contended that the Complainant was paid in accordance with the Department of Education rules and that it did not have authority to concede the claims.

The Complainant submitted that he is a full time Guidance Counsellor with the Respondent for more than 6 years, with previous service in another location.  He submitted that he first commenced work as a Guidance Counsellor with a different school in 2017/18 and that he was paid the unqualified teacher rate of pay and that throughout the past 6 years of service he has been paid on the first point of the Teachers incremental scale with no access to incremental credit.

He submitted that in 2022 he received a Contract of Indefinite Duration (CID), however, while this gave him a right to on-going employment as a Guidance Counsellor with the Respondent, he has not been provided with access to incremental credit despite acknowledgement by his School Principal of the quality of his service.  He outlined that he has a great sense of personal commitment to supporting the young people with whom he comes in contact while at the same time he finds himself in a most difficult position.  He submitted that on the one hand he is thanked and congratulated on the quality of his work, and on the other hand he is confined to a salary devoid of incremental credit.  He submitted that he could remain in his current position for the next 20 years and will never be eligible for incremental credit.  He submitted that having a Contract of Indefinite Duration, effectively a “permanent employee”; he cannot apply for promotion.

The Complainant drew attention to the significant coverage there had been recently in relation to shortages of teachers, and he noted that there was also a significant shortage of Guidance Counsellor.  He noted an article in the Irish Times of 1 January 2025 where details of a Department of Education Report were published which identified the extent of teacher shortages including:

-          More than 400 vacant teaching posts at second level

-           800 teaching posts occupied by persons not qualified to teach the subject they are teaching

-          62 vacant Guidance Counsellor posts across the country

The Complainant submitted that he is highly educated, is qualified to teach Guidance Counselling but does not hold a dual qualification, i.e. a second degree in a curriculum subject.  The Complainant further submitted that there has also been significant coverage of the mental health issues experienced by 2nd level students, including anxiety, self-harm and suicidal ideation.  In this regard the Complainant noted that in possessing an MSc in Adolescent Psychotherapy he possesses and additional valuable skillset appropriate to the needs of the children with whom he works.  The Complainant submitted that Guidance Counsellors are effectively operating as “gatekeepers” for children in need of mental health care for which there are significant waiting periods, providing care and support to children awaiting mental health service appointments.  He submitted that in the absence of a HSE mental Health Primary Care service and the long waiting lists to access Child and Adolescent Mental Health services (CAMHS) the children, and their families, are dependent on the support they can get from the very scarce resource that is the Guidance Counsellor and he noted that this is the practical reality in DEIS (Disadvantaged area) schools.

The Complainant cited the Department of Education and Skills Circular 0031/2011 where it states at section 3.4 that:

“Where an employer can satisfactorily demonstrate that every reasonable effort has been made to recruit an appropriately qualified registered teacher, a teacher registered under any regulation of the Teaching Council (Registration) Regulations 2009 may be appointed pending the recruitment of an appropriately registered teacher. The contract of employment must include a condition that6 the contract will terminate on the recruitment of an appropriately qualified registered teacher of the following 31st August, whichever happens first.  Remuneration will be at the unqualified rate of pay.”

The Complainant also cited Paragraph 6.3 of the same circular as follows:

“An unregistered person employed in accordance with paragraph 6.1-

(a)   Will be paid at the unqualified rate of pay;

(b)   May not be paid in respect of more that one week’s continuous employment at any one time; and

(c)    Must have included in his or her contract of employment a condition that the contract will terminate immediately if the employer is in a position to employ a registered teacher.”

The Complainant noted that when the Circular is compared to the reality it demonstrated the Circular’s futility and he noted that those ‘unqualified’ teachers, employed as Guidance Counsellors will, if they remain in the school, achieve the legal threshold for the award of CID’s due to the historic and ongoing shortage of Guidance Counsellors.

CA- 00066361-001

The Complainant submitted this complaint under the Industrial Relations Act; however, it referred to the fact that he was a fixed term employee and indicated that he had, in respect of his conditions of employment, been treated less favourably that a comparable permanent employee.

At hearing the Complainant representative advised that he would withdraw this complaint as he accepted that he was no longer a fixed term employee.  However, no confirmation of a withdrawal was ever received.  In that context I have summarised the argument outlined in the submission and will make findings below in relation to the complaint.

In his complaint form the Complainant alleged that he is being treated less favourably that a comparable permanent employee.  He outlined that following his employment as a Non-Qualified Teacher Guidance Counsellor on Fixed-Term contracts, he was provided with a CID.  He outlined that he has not been provided with incremental credit but remains on the first point of the scale.  He cited a colleague, Ms. CS, as his comparator and confirmed that she is a qualified teacher and Guidance Counsellor and further confirmed that if she was provided with a CID she would be provided with incremental credit. The Complainant submitted that the Respondent is in breach of the Protection of Employees (Fixed Term Work) Act 2003.

In his submission the Complainant outlined that the Complainant and his comparator have been deployed full-time to the role of Guidance Counsellor.

He submitted that his employment record with the Respondent demonstrates that he is an important and valued employee, that he has been in continuous employment as a Guidance Counsellor for 7 years, the past 6 with the Respondent.  He confirmed that he had been provided with a CID but that he has not been provided with annual increments.  He further submitted that incremental credit is a standard part of the terms and conditions of employment of public servants and recognises the employee’s ongoing satisfactory service.  He submitted that in the normal course of events increments may be withheld if the employee had not provided satisfactory service in the previous year.  He noted that the only reason his increments have been withheld is that he is not recognised as qualified to teach a curriculum subject.

The Complainant acknowledged that he now enjoys the protection of the Protection of Employees (Fixed Term) Act 2003 and cited Section 5 of the Act in relation to comparable permanent employees where it states

(a)    that “a permanent employee and the relevant fixed-term employee are employed by the same employer or associated employers and on of the conditions referred to in subsection (2) is satisfied in respect of those employees” and it further states that “both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to work”

The Complainant noted that Section 6 of the Act provides that a Fixed term employee can be treated less favourably than a permanent employee “if the less favourable treatment is for the purpose of achieving a legitimate objective of the employer and such treatment is necessary for that purpose.”  The act further states at section 691) that “subject to subsections (2) and (5), a fixed term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner that a comparable permanent employee” and at Section 6(20 it states that “if treating a fixed term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds, then the employee may, notwithstanding subsection(1) be so treated.”

The Complainant submitted that for the last 6 years he has worked substantially the same hours with the same responsibilities as his comparator, Ms. CS.  He outlined that he holds the following academic qualifications:

Diploma Sports Therapy (Crumlin College Further Education)

BA Creative Music and Technology (University Central Lancashire)

Diploma Integrative Psychotherapy (I.I.C.P.)

BA Integrative Psychotherapy (I.I.C.P.)

Masters Guidance Counselling

Masters Adolescent Psychotherapy

The Complainant submitted that the Respondent had recognised that he had earned the right to a CID and noted that his comparator, or indeed any qualified teacher, in a similar situation would be entitled to a CID after 2 years on Fixed Term contracts.  He pointed out, however, that they would have access to all the benefits that would apply to a CID, including incremental credit.  The Complainant submitted that there is no objective justification for treating him less favourably.  He submitted that the only reason put forward by the Respondent is because he does not have a dual qualification, a degree in a curriculum subject and a degree in Guidance Counselling and he submitted that he is educated to a level greater than that of a ‘qualified teacher’.  He submitted that the teaching qualification required is an artificial barrier designed to exclude Guidance Counsellors and “amounts to indirect discrimination”.

The Complainant noted that he and his comparator have been substantially assigned fulltime to Guidance Counselling and that they have both provided services in ‘Substitution and Supervision’.  He submitted that his treatment was anomalous and must be addressed in his favour.

CA- 00066361-002

In his complaint form, the Complainant alleged that he was awarded a Contract of indefinite Duration but despite providing ongoing excellent service he has been denied access to incremental credit and remains on the first point of the scale after 7 years.

In his submission the Complainant noted that the Respondent had objected to the claim being considered under the Industrial Relations Act and submitted that the complaint should be heard under both the Protection of Employees (Fixed Term Work) Act and under the Industrial Relations Act.

The Complainant recognised the entitlement of the employer to object to the matter being heard at adjudication but reserved the right to refer the matter to the Labour Court.  Nonetheless, the Complainant submitted that the details set out above demonstrate the unfair treatment of the Complainant.

CA- 00066361-003

In his complaint form, the Complainant alleged that he was denied the benefits of the Protection of Employees (Fixed Term Work) Act 2003.  He advised that his comparator would have been entitled to a Contract of indefinite Duration (CID) after 2 Fixed Term Contracts (2 years) and would have been immediately  commenced on the incremental scale.  He advised that he was provided with a CID but has been maintained on the first point of the scale.

In his submission the Complainant noted that the Respondent had objected to the claim being considered under the Industrial Relations Act and submitted that the complaint should be heard under both the Protection of Employees (Fixed Term Work) Act and under the Industrial Relations Act.

The Complainant recognised the entitlement of the employer to object to the matter being heard at adjudication but reserved the right to refer the matter to the Labour Court.  Nonetheless, the Complainant submitted that the details set out above demonstrate the unfair treatment of the Complainant.

Preliminary Issues

The Complainant is employed to teach Guidance Counselling in an unqualified capacity at The Respondent school. The Respondent submitted that it wished to raise the matter of the grade of teacher under the Industrial Relations Acts as a preliminary issue.

The Respondent noted that the grade of teacher is excluded from the definition of ‘worker’ in the Industrial Relations Acts and teachers are therefore not entitled to bring claims to the WRC and/or the Labour Court under the Industrial Relations Acts. The Respondent submitted that it was therefore of the view that the WRC does not have the jurisdiction to hear this teacher’s complaint under the Industrial Relations Acts.

The Respondent further submitted that it is not appropriate to hear this teacher’s complaint under the provisions of section 13 of the Industrial Relations Acts, as this section of the Act is not intended to be used for referral of claims concerning rates of pay, hours or other terms and conditions such as times of work or annual leave that would seek to change the terms and conditions for all teachers, The Respondent further submitted that matters such as the issues raised in this complaint, i.e. pay and incremental progression for teachers are determined at the Teachers Conciliation Council and by relevant Department of Education circular letters. The Teachers Conciliation Council provides the forum for claims and proposals in relation to pay and other terms and conditions for teachers and the Board of Management is not in a position to engage with teachers on an individual basis on pay, incremental credit or other terms and conditions of employment.

The Substantive Issues

General Background

The Respondent submitted that the Complainant is currently employed to teach Guidance-Counselling in an unqualified capacity at the Respondent school and that it should be noted that, in line with Department of Education guidelines and circulars, to work as a guidance counsellor teacher in the post-primary sector, a dual qualification is required: a teaching qualification for post-primary (recognised by the Teaching Council) and a guidance-counselling qualification (recognised by the Department of Education).

The Respondent submitted that it had been unable to find a suitably qualified and registered Guidance Counsellor teacher, and for this reason the Complainant had continued to be employed by the school. The Complainant started employment with the school on 1 September 2018 on a fixed term contract (as an unqualified Guidance Counsellor teacher). His fixed term contracts (in an unqualified capacity) were renewed in the years 2019/20, 2020/21 and 2021/22. The Complainant was offered a contract of indefinite duration in September 2022. The Complainant is registered under route 3 (Further Education) with the Teaching Council and does not hold a qualification for the post-primary teaching sector (route 2 registration). The Respondent submitted that for this reason, he is deemed unqualified for the post-primary sector and is paid at the unqualified rate of pay.

CA – 00066361-001

The Respondent noted the Complainant allegation that he is a fixed term worker and has, in respect of his conditions of employment, been treated less favourably than a comparable permanent employee.

The Respondent submitted that the Complainant is no longer a fixed term worker and that he is employed on a permanent contract with the Board of Management of the school. He was granted a contract of indefinite duration in September 2022 and the school has complied with the fixed term legislation. The Respondent further submitted that this does not, however, give him any additional entitlements other than permanent status and his terms and conditions remain the same.   The Respondent outlined that as the Complainant is not the holder of a qualification required for the post-primary sector (route 2 registration) and, in line with Department of Education circular letters, he is paid at the unqualified rate of pay as per circular letter 31/2011. The Respondent noted that this applies to all teachers who are not appropriately qualified for the sector in which they are employed – in this case the post-primary sector.

The Respondent noted that the comparator whom the Complainant referenced in his complaint is a route 2 registered teacher (post primary) with the Teaching Council and is therefore paid at the qualified rate of pay and has access to incremental progression as per Department of Education circular letters. The Respondent submitted that the Complainant is treated the same as any similar person in the same situation. He does not hold the same qualifications as the permanent employee who is fully registered and qualified for the post-primary sector. He is, therefore, not eligible for qualified pay scale which includes incremental progression.

CA – 00066361-002

The Respondent noted the Complainant allegation that he was awarded a Contract of Indefinite Duration (CID) but despite being providing ongoing excellent service he has been denied access to Incremental Credit and remains on the first point of the scale after 7 years of employment.

The Respondent confirmed that the Complainant was granted a contract of indefinite duration in September 2022, but that this does not confer any additional entitlements to him other than permanent status. The Respondent noted that the Complainant is considered an unqualified teacher for the post-primary sector as he is registered with the Teaching Council under route 3 which is registration for the Further Education sector and further noted that the Teaching Council is the regulator of the teaching profession in Ireland. The registration of teachers is governed by section 31 of the Teaching Council Acts 2001-2015 and teachers may apply for registration in the following sectors:

Route 1 – Primary

Route 2 – Post primary

Route 3 – Further Education

Route 4 - Other

The Respondent submitted that Route 2 registration is required for the post-primary sector and each employer is required to ensure that each person proposed for appointment to a teaching post must: • Be registered with the Teaching Council in accordance with Part 3 of the Teaching Council Act 2001 for the sector in which they are to be employed to teach.

• Have qualifications appropriate to the sector and the subject for which they are to be employed to teach and

• Be in compliance with the National Vetting Bureau Acts and with relevant Department’s circulars in relation to garda vetting.

The Respondent submitted that it had been unable to employ a route 2 registered Career Guidance Teacher, and for this reason, the Complainant’s employment had continued in the school to date. The Respondent noted that teachers who are not appropriately registered and qualified for the sector are paid at the unqualified rate of pay as per circular letter 31/2011) and further noted that they are not remunerated on the teacher’s incremental pay scale and there is no incremental progression. The Respondent advised that pay increases are given in line with national pay agreements in accordance with Department of Education circular letters. The Respondent submitted that these pay increases in line with national pay agreements had been applied to The Complainant’s salary as per Department circular letter.

The Respondent noted that the most recent circular letter applying to The Complainant’s salary is circular letter 73/2024.  The Respondent further noted that the Complainant was not on a salary scale and that this was in line with Department of Education circular letters.

CA – 0006636-003

The Respondent noted the Complainant allegation that he has been denied the benefits of the Protection of Employees (FixedTerm Work) Act 2003, that his comparator would have been entitled to a Contract of Indefinite Duration (CID) after 2 fixed term contracts (2 years) and would have immediately commenced on the incremental scale, that he was provided with a CID but has been maintained on the first point of the scale.

The Respondent submitted that the Complainant is registered with the Teaching Council under route 3 (Further Education) and is therefore, not considered qualified for the post-primary sector. Route 2 registration with the Teaching Council is required to be deemed a fully registered and qualified teacher for the post-primary sector. The Respondent submitted that it is a post-primary school and that under the terms of the Department of Education’s circular letter 0024/2015), a teacher who is: • registered on a current basis with the Teaching Council and

• holds qualifications appropriate to the sector and

• has in excess of 2 years continuous teaching service under two or more successive written contracts of employment with the same employer in an Oireachtas funded post

may be entitled to a contract of indefinite (provided a viable post in available). A teacher must have qualifications appropriate to the sector which is this case is the post-primary to be eligible for consideration of a CID under circular letter 24/2015.

The Respondent submitted that the Complainant does not have qualifications appropriate to the sector. The respondent further submitted that the comparator, if route 2 registered, would have been eligible to apply for a CID and have been placed on the incremental salary scale and that this is in accordance with the terms of Department of Education circular letters.

The Respondent noted that the Complainant was granted a Contract of Indefinite duration from 1 September 2022 and that as he is unqualified for the post-primary sector, he is not entitled to incremental progression, in accordance with Department of Education circular letters. The Respondent submitted that teachers are paid through the Department of Education’s payroll system and, as far as it is aware, all teachers who are unqualified for the sector are treated the same.

The Respondent further submitted that where an employer issues a Contract of Indefinite Duration and that Contract of Indefinite Duration is to be Oireachtas funded, the employer must comply with the terms and conditions of the circular letter. The Respondent cited Circular letter 24/2015 which states that ‘the school must also certify that the CID sought is in accordance with the terms outlined in this circular and that it is in respect of a viable post as per A (1) and A (2)’ .

The Respondent noted that it is the long-established, standard, and accepted practice in the education sector to use a centralised approach when determining the terms and conditions of school staff paid by the Department of Education and that it is not tenable, nor the practice of the Department, management bodies, or trade unions to engage with individual teachers when negotiating terms and conditions of employment. The Respondent submitted that any additional amendments to teachers’ terms and conditions, including pay and allowances, may be achieved through engagement and collective bargaining agreements between the Government and the public service unions or through Teachers Conciliation Council.

The Respondent submitted that it is normal industrial relations practice in the public service that the decision of the trade union recognised as holding representative rights for a particular grade or sector will determine the position for all relevant staff in that grade/sector and that this context does not allow for acceptance or rejection of collective agreements by staff on an individual basis.

The Board of Management and Principal of the Respondent wished to take the opportunity to thank the Complainant for his work in the school. The Respondent advised that the Complainant was a valued member of the teaching staff and worked very well with the students in his care. However, the Respondent submitted that the school is obliged to work within the terms of the Department of Education circular letters and directives and is, therefore, unable to negotiate with the Complainant on his pay or provide incremental progression. The Respondent noted that the Complainant is paid through the Department of Education’s payroll. In this regard, although the Board is the employer, it is not the appropriate respondent in respect of The Complainant’s claim. The Respondent requested the Adjudication Officer to reject the Complainant’s claims under the Industrial Relations Act 1969.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

Preliminary Issue 1 - Issue of Jurisdiction

The first issue that I must decide is the jurisdictional issue raised by the Respondent. 

The Respondent submitted that the Complainant is a teacher, that the grade of teacher is excluded from the definition of ‘worker’ in the Industrial Relations Acts and that the WRC does not have the jurisdiction to hear this teacher’s complaint under the Industrial Relations Acts.

I noted the discussion at hearing where questions were raised as to whether or not the Complainant was a teacher in the context that he was considered ‘unqualified’ by the Respondent and by the Department of Education, resulting in him not having access to the incremental scale.  I have considered this question carefully as a decision in this matter is pivotal to all three complaints.

I noted the submissions made by the Respondent in relation to the Department of Education circulars and in relation to the Teaching Council registration requirements.  In addition a ‘Worker’ for the purpose of the Act means n, I considered the information on the Teaching Council website and I noted that the Council states that “to become a primary, post-primary and further education teacher in Ireland, you must complete a programme of initial teacher education (ITE).  I noted that the Complainant is registered as a fully registered teacher for the Further Education Sector.

In that context I must conclude that the Complainant does meet the requirements to be defined as a teacher, albeit he does not hold the qualifications to be registered as a post-primary teacher.

I noted that Section 23 of the Industrial Relations Act states that ‘A Worker’ for the purpose of the Act means “any person aged 15 years or more who has entered into or works under a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour including, in particular, a psychiatric nurse employed by a health board and any person designated from time to time under subsection (3) but does not include –

(a)   a person who is employed by or under the State,

(b)   a teacher in a secondary school

(c)    a teacher in a national school,

(d)   an officer of a local authority,

(e)    an officer of a vocational education committee, ……”

CA-00066361-001

I noted that although the substance of this complaint related to the Fixed Term Work Act the claim was lodged under the Industrial Relations Act and I noted that this may have been due to the fact that the Complainant was no longer a fixed term employee.

In accordance with the provisions of Section 23 of the Industrial Relations Act and based on the fact that the Complainant is a fully registered teacher for the Further Education Sector I must conclude that he does not have standing to take a claim under the Industrial Relations Act.  In these circumstances I find that I do not have jurisdiction to hear this complaint.

CA-00066361-002

In accordance with the provisions of Section 23 of the Industrial Relations Act and based on the fact that the Complainant is a fully registered teacher for the Further Education Sector I must conclude that he does not have standing to take a claim under the Industrial Relations Act.  In these circumstances I find that I do not have jurisdiction to hear this complaint.

CA-00066361-003

In accordance with the provisions of Section 23 of the Industrial Relations Act and based on the fact that the Complainant is a fully registered teacher for the Further Education Sector I must conclude that he does not have standing to take a claim under the Industrial Relations Act.  In these circumstances I find that I do not have jurisdiction to hear this complaint.