Complainant

Respondent

Parties

Mary  Lynch

St. Dominic's College

Representatives

Des Kavanagh Des J. Kavanagh HR Consultancy Limited

Mr Mark Curran instructed by Catherine Kelly Mason Hayes & Curran

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00066362-001

30/09/2024

The Complainant is an experienced former business professional who retrained as a Guidance Counsellor and returned to second‑level teaching with the Respondent in the 2021/22 academic year on a part‑time fixed-term contract, following a period of illness. Her contracted hours increased over subsequent years, and she worked under successive fixed‑term contracts until the end of the 2024/2025 academic year.

She is registered with the Teaching Council under Route 3 but does not hold the qualifications required for Route 2 registration, a requirement of the Respondent funder in pay and contractual matters. The Complainant maintains that, notwithstanding this, she was suitably qualified and performed the full duties of a Guidance Teacher, and she contends in her complaint form that the Respondent’s failure to pay her beyond the first point of the scale was unjustified and contrary to the Protection of Employees (Fixed‑Term Work) Act 2003. It was also argued in submissions and in hearings that the Respondent failed to renew her contract to avoid the grant a contract of indefinite duration (CID) and that they were penalised in this.

The Respondent’s case is that the Complainant was employed as a Guidance Counsellor from  01/09/21 to 31/08/25 on a series of exceptional fixed‑term contracts issued in accordance with Department of Education Circular 0031/2011.

The Complainant is registered with the Teaching Council under Route 3 (Further Education) and does not hold the qualifications required for post‑primary (Route 2) registration. As a result, she was lawfully employed on successive fixed‑term contracts, paid at the unqualified rate, and was not eligible for incremental progression, a CID, or comparison with a fully qualified Route 2 teacher. The Respondent denies that the Complainant was treated less favourably as a fixed‑term worker, rejects the validity of the comparator relied upon, submits that its actions were entirely governed by DEY circulars and objective qualification requirements.

The Respondent also argues that the Complainant canvassed further complaints not contained under their original complaint form and  the Commission lacks  jurisdiction to hear those additional complaints.

Complainant Background

The Complainant is a highly experienced businessperson who previously held senior roles before retraining as a Guidance Counsellor. During her time as a Guidance Teacher, she worked in several schools before becoming ill and undergoing treatment. In the 2021/22 academic year, she returned to work with the Respondent in a part‑time capacity on a Fixed‑Term Contract (FTC). Her contracted hours increased over subsequent years. The Complainant states that during the relevant period, the Respondent changed its recruitment process. She found herself required to interview for her own post even though she was the only candidate.

Refusal of a Further Contract The Complainant states that she would have entered a fifth year of service with the Respondent; however, her contract was neither renewed nor advertised.

Previous Notice of Intention to Achieve CID Upon signing her third contract, the Complainant informed the principal that she hoped to obtain a CID after completing four years’ service. She states that she was told this would not occur because she was “not a qualified teacher” and that the principal had been instructed not to grant her a CID by the DEY. She claims this was later confirmed in writing.

Complainant’s Suitability for Post The Complainant maintains that she is highly qualified, skilled, and suited to the work of a Guidance Counsellor. She notes that while her qualifications are recognised in third‑level institutions, they are not recognised for second‑level Teaching Council registration.

Shortage of Guidance Teachers and Circular Requirements The Complainant emphasises the national shortage of Guidance Teachers and argues that this demonstrates the impracticality of the relevant circular.

She refers to paragraph 3.4 of Circular 0031/2011 requiring schools to make every reasonable effort to employ a qualified Guidance Teacher and stating that an unqualified teacher’s contract must terminate upon recruitment of a qualified and appropriately registered teacher.

She argues that she is registered—albeit under Route 3—and therefore should not be treated as entirely unqualified.

Complainant’s Registration Status The Complainant highlights the value of her undergraduate degree, master’s degree, and experience. She states that despite being treated as “unqualified,” she was required to undertake all duties associated with teaching, including unpaid substitution and supervision.

Her representative states that while she has substantial relevant prior experience, she cannot obtain Route 2 registration without a PME and is therefore registered under Route 3, which is treated as an “unqualified” route.

Complainant’s Fifth‑Contract Denial The Complainant has extensive experience in similar roles from 2018 onwards, with a break for health reasons prior to returning in 2021. She worked with the Respondent until the end of the 2024/2025 academic year. She states that her role, which would have taken her into a fifth year, was not advertised, contrary to normal practice. She was again interviewed for the post she had previously held and was the only applicant. She maintains that the interview focused on general teaching duties rather than Guidance Counselling.

Departmental Instruction to Respondent The Complainant states that in September 2023 she sought permanency and was told it would not occur because she was an unqualified teacher. Upon signing her fourth contract in September 2024, she again enquired and was told the post would always be advertised and that the Department had instructed the principal to not renew her contract and to terminate her employment as soon as possible.

Practice Across the Sector The Complainant points to other second‑level schools where unqualified teachers have been granted CIDs after 2, 3, or 4 years and the hearing heard evidence of this from another Guidance Teacher.

Croke Park Hours and Other Duties The Complainant accepts she does not meet Route 2 qualification requirements but maintains she is otherwise well‑qualified and capable. She states she also taught SPHE and VPG and gained the necessary teaching experience “on the job.”

She also refers to the fact  that Guidance Teachers must undertake the additional unpaid duties imposed on all teachers, including substitution and Croke Park hours.

Objective Justifications The Complainant refers to the widespread practice of employing unqualified or unregistered teachers due to shortages and argues that the approach dictated by the Department is a “cruel denial” of the reality in schools, including her former employer.

Incremental Credit and Same Work Under Similar Conditions

The Complainant argues that she is entitled to incremental credit under the Act and identifies a comparator—a permanent teacher with the same surname—claiming they perform the same work under similar conditions or are interchangeable. She also argues that the requirement to hold a specific qualification to progress beyond point one of the scales is not objectively justified when performing the same work.

Penalisation

The Complainant relies on statutory protection against penalisation for invoking rights under the Act and maintains that she clearly notified the Respondent of her intention to assert these rights.

Stress and Anguish The Complainant states she should be compensated for stress and anguish caused, particularly given the principal’s suggestion that this was merely a local grievance matter. She states that hostility was shown towards her after making the referral.

Continuing Employment Under the Act The Complainant disputes the necessity of the qualifications cited by the Respondent. She argues that she is well‑qualified and experienced notwithstanding the absence of a PME, and that since the State has allowed her to work without issue to date, there is no reason it cannot continue. She asks the Adjudicator to declare the qualification requirement void.

Dismissal The Complainant states that since the original referral she has been dismissed despite the Department allocating 32.8 hours of guidance teaching weekly to the Respondent. She claims the principal stated that the allocation had been reduced by “1.3 teachers” and that the school decided to suppress the hours she had been providing. She argues that this occurred despite increasing student numbers and represents an attempt to avoid obligations under the Act. She seeks a declaration that her dismissal is void.

Supplementary Submission of the Complainant The Complainant reiterates her claim that the Respondent acted to avoid granting her a CID and highlights further discussions between herself and the former  principal.

It is the Respondent case that the Complainant was employed as a Guidance Counsellor by the School. The dates of employment are from 01 September 2021 to 31 August  2025 on a succession of fixed term contracts. The Respondent  set out that each contract was for appointment in line with the Circular 31/2011 and were exceptional appointments. Further the Contract set out the nature of the position and the precarious nature of the employment following the DEY circular.

The Respondent sets out that in the complaint form that the Complainant asserts being a fixed‑term worker who has been treated less favourably than a comparable permanent employee regarding terms and conditions of employment. The Complainant claims the employer has placed them on successive one‑year fixed‑term contracts at the first point on the incremental scale, and that this treatment breaches the Protection of Employees (Fixed‑Term Work) Act 2003.

The Respondent denies all such assertions and any claim for compensation for stress and anguish. The Respondent also rejects any claim for incremental credit, which is contrary to the DEY policy, and rejects the named comparator as being a true comparator.

The Respondent denies the  claim in its entirety.

Department of Education and Skills Circular 0031/2011 ‘Teacher Recruitment and Qualifications’

The Respondent refers to Department of Education and Skills Circular 0031/2011, Teacher Recruitment and Qualifications, which instructs schools to follow the required regulations and procedures for employing qualified, registered teachers in approved teaching posts funded by the Oireachtas.

The purpose of the Circular is to ensure, as far as practicable, that appointees are appropriately qualified and registered for the sector, that they are suitable for the post, and that unemployed teachers are prioritised for employment over retired teachers. The Circular applies to all appointments made on or after 1 September 2011.

The  Respondent refers to Circular 0031/2011 that it  sets out the requirements for appointing teachers to posts funded by the Oireachtas. It provides that, as far as possible, anyone appointed to a teaching post must be registered with the Teaching Council and appropriately qualified for the sector and the specific post.

The Circular establishes a hierarchy for recruitment. The first preference is for and appropriately qualified registered teacher. If this person is not available, then the second preference is a retired appropriately qualified and registered teacher. The third preferred choice is a registered teacher who is not appropriately qualified, with preference for those who are not retired. As a last resort, an unregistered person, and only for very limited periods.

The Respondent points to Key definitions:

• A registered teacher is someone whose name appears on the Teaching Council register under the Teaching Council Act 2001.
• A school year runs from 1 September to 31 August.

Paragraph 3.1 requires employers to ensure that any proposed appointee is registered with the Teaching Council and appropriately qualified.

Paragraph 3.4 allows a school to appoint a registered but not appropriately qualified teacher only where all reasonable efforts to recruit an appropriately qualified registered teacher have failed.

Such contracts must include a clause stating that employment will end when an appropriately qualified registered teacher is recruited or on the next 31 August, whichever comes first, and “Remuneration will be at the unqualified rate of pay.

Paragraph 7.1 sets out :

“Where an unregistered person is employed under paragraph 6, the school must continue to make all reasonable efforts to employ an appropriately qualified registered teacher. Where an appropriately qualified registered teacher or a teacher registered under any regulation under any regulation of the Teaching Council [Registration] Regulations 2009 can be employed, the school shall immediately terminate the contract of the unregistered person.”

This requires schools that have hired a registered, but not appropriately qualified teacher, to continue making reasonable efforts to secure an appropriately qualified registered teacher. Once such a teacher becomes available, the school must immediately terminate the existing contract with one week’s contractual notice.

Registration Routes

The Respondent also refers to section 31 of the Teaching Council Act 2001 (as amended) and the Teaching Council Registration Regulations 2016 (as revised), which govern the registration of teachers in Ireland. Under these provisions, teachers may apply for registration under one of four routes:

• Route 1 – Primary,
• Route 2 – Post‑Primary
• Route 3 – Further Education
• Route 4 – Other

The Respondent sets out that these  routes determine the sector in which a teacher is qualified and eligible to teach, and they form part of the regulatory framework cited by the Respondent in support of their position.

Lawfulness of the Fourth Fixed‑Term Contract

At the time the complaint was lodged (30/09/24), the Claimant was one month into a fourth successive one‑year fixed‑term contract.

The Respondent argues that section 9(1) of the Protection of Employees (Fixed‑Term Work) Act 2003 permits fixed‑term employment, including renewals, for a maximum aggregate duration of four years, in the absence of objective grounds justifying a longer period.

In those circumstances, the offer of a further one‑year fixed‑term contract, bringing the Claimant’s total fixed‑term service to four years, was lawful. Any complaint regarding the failure to grant a CID relates to events arising after the complaint was filed and is therefore premature.

Complainant Teaching Council Registration and Pay Rate

The Claimant is registered with the Teaching Council under Route 3 – Further Education. They do not hold a qualification for the post‑primary sector (Route 2). As a result, the Respondent asserts that the Complainant  is deemed unqualified for post‑primary teaching and is paid at the unqualified rate, in accordance with Circular 0031/2011. This position, the Respondent states, is applied consistently to all teachers who are not appropriately qualified for the sector in which they are employed.

Validity of Comparator, Qualifications, Registration

The Respondent rejects the named comparator and  submits that the comparator is not a valid comparator for the Complainant  because the comparator is a fully qualified Route 2 post‑primary teacher. The comparator is paid at the qualified rate and progresses incrementally in line with DEY circulars. By contrast, the Complainant  does not hold equivalent qualifications and, therefore, is  treated the same as any similarly qualified person; but is not eligible for the qualified pay scale and does not have access to incremental progression.

Penalisation

The Respondent rejects the claim of penalisation and  submits the following in relation to the Complainant’s allegation that they were penalised because they were not offered a contract of indefinite duration.

Outside of Scope

The Respondent argues that this aspect of the Complainant’s case arose after the complaint form was submitted. For that reason, the Respondent contends that the penalisation claim is outside the scope of the original complaint.

Reduction in Staffing Allocation

The Respondent states that its teacher allocation was reduced by 1.3 teaching posts for the 2025–26 academic year. As a result, the school did not require a second guidance counsellor for that year. This, the Respondent says, is the sole reason the Complainant’s fixed‑term contract is not being renewed. The Respondent denies that non‑renewal was used as a mechanism to avoid statutory obligations under the Act.

Communications With the Complainant

The Respondent asserts that the school Principal met with the Complainant regularly throughout the 2024–25 academic year—particularly in March, May and June 2025—to keep them informed about the staffing situation for 2025–26. This was followed by a phone call and email on 25 June 2025, confirming that there would be no second guidance counsellor position for the 2025–26 academic year.

Respondent Conclusion

Complaint Denial

The Respondent denies the Complainant’s claim in its entirety. For the period from 1 September 2021 to 31 August 2025, the Respondent was not able to employ a Route 2 registered Guidance Counsellor. It was in those circumstances that the Complainant was employed on successive fixed‑term contracts.

Registration

The Complainant is registered with the Teaching Council under Route 3 (Further Education) and is therefore not considered qualified for the post‑primary sector. As a result, the Complainant has been paid at the unqualified rate of pay in accordance with Circular 31/2011 and has not been remunerated on the incremental teacher pay scale. The applicable Department of Education Circular binds the Respondent, who merely applies it.

Reduction in Teacher Allocation

Due to a reduction in teacher allocation for the 2025–26 academic year, the Respondent has been unable to continue to fund two registered Guidance Counsellor posts. For this reason, the Complainant’s employment had to end.

Collective Bargaining

Even if the Complainant were to succeed in this claim, the Respondent notes that it is long‑established, standard, and accepted practice within the education sector that a centralised approach is used in determining terms and conditions for school staff paid by the DEY. The Respondent submits that it is not tenable—nor is it, to the best of its knowledge, the practice of the Department, management bodies, or trade unions—to negotiate terms and conditions individually with teachers. Accordingly, the Respondent asks the Adjudicator to consider that any amendments to teachers’ terms and conditions, including pay and allowances, may only be achieved through Government–union engagement or via the Teachers’ Conciliation Council.

DEY Payroll

The Respondent acknowledges that the Complainant was a valued member of its teaching staff. However, the Respondent is obliged to operate strictly within DEY circulars and directives and is therefore unable to negotiate with the Complainant regarding pay or provide incremental progression. The Respondent also notes that the Complainant is paid through the DEY payroll, and in this regard, although the Board is the employer, it is not the appropriate Respondent in respect of the substance of the Complainant’s claim.

Protection of Employees (Fixed-Term Work) Act 2003

The Protection of Employees (Fixed-Term Work) Act 2003 was enacted to implement an EU Directive concerning the framework agreement on fixed-term work and to provide for related matters. The Act gives effect to a non-discrimination principle for fixed-term employees, permits departure from that principle where objectively justified, regulates successive fixed-term contracts and provides for a deemed CID in specified circumstances and prohibits penalisation for invoking or relying on rights under the Act.

The Complainant must establish, on the evidence, the facts necessary to bring themselves within the relevant statutory protections. Where the Act permits an employer to defend a difference in treatment or a renewal beyond the statutory limits by reference to “objective grounds”, the employer must advance evidence of such objective grounds within the meaning of sections,  as applicable.

Contract of Indefinite Duration (CID)

Section 9 regulates successive fixed-term contracts and, subject to objective grounds, provides that following completion of a third year of continuous employment a fixed-term contract may be renewed only once and that renewal shall be for no longer than one year. Where a term of a fixed-term contract purports to contravene the Act that the offending term has no effect and the contract shall be deemed to be a contract of indefinite duration. However, the Act also  disapplies these limits where there are objective grounds justifying renewal for a further fixed term.

Less Favourable Treatment on the Basis of (Fixed-Term Status)

Section 6(1) provides that a fixed-term employee shall not, in respect of conditions of employment, be treated in a less favourable manner than a comparable permanent employee. Accordingly, to ground such a complaint the complainant must establish that they are a fixed-term employee, identify an appropriate comparable permanent employee, and demonstrate less favourable treatment in respect of an identified condition of employment.

Where less favourable treatment is established, section 6(2) permits that treatment only where it can be justified on objective grounds. Section 7(1) provides that a ground is not “objective” unless it is based on considerations other than fixed-term status and the less favourable treatment is for the purpose of achieving a legitimate objective of the employer and is appropriate and necessary for that purpose.

Section 7 further provides that, for the purposes of section 6, treatment may be regarded as objectively justified where the terms of the fixed-term employee’s contract taken as a whole are at least as favourable as the terms of the comparable permanent employee’s contract taken as a whole.

Penalisation

Section 13 prohibits an employer from penalising an employee for engaging in protected conduct under the Act, including invoking rights to equal treatment, opposing by lawful means an act which is unlawful under the Act, giving evidence (or notifying an intention to do so), or where a dismissal is wholly or partly connected with avoiding a fixed-term contract being deemed a contract of indefinite duration under s.9).

In order to ground a complaint under s.13, the Complainant must identify the protected act relied upon and establish that they were subjected to a “penalty” within s.13(2), which includes dismissal, an unfavourable change in conditions of employment, unfair treatment (including selection for redundancy), or other action prejudicial to employment.

Complaint Referred

In the first, and for the sake of complete clarity, there was an emerging argument in the course of the hearings that the Complainant has been penalised for referring a complaint in that the Respondent has failed to award them a CID.

This is an addition to complaint form that sets out that they have been treated in a less favourable manner than comparable permanent employees by the employment on fixed term contracts by retaining them  on the first point of the scale. This is the legal complaint that I have jurisdiction for.

PayScale

The matter of the Complainant being on the first point of the scale is a matter of collective bargaining and not an individual employment rights matter. It is  arising from DEY/DPENDR  policy in circumstances where the employee is not fully registered or qualified and  there are other  examples of this across the Public Sector.

It is not a decision of the Respondent employer, but a condition of funding placed upon all schools in the same situation. The issue  is obviously one of concern to the Complainant and to Guidance Teachers collectively and thus is a matter for national level  negotiations.

The Respondent has raised this matter in their submissions, and I agree on this.

I am bound to not interfere in this and I will not address it further  in this decision and, instead, will confine myself to deciding if Complainant has been treated less favourably due to their fixed term status; the complaint referred.

Penalisation

The Respondent has convincingly set out that penalisation complaint arises as a separate complaint. The complaint made  on the complaint form was that the Complainant:

“as a fixed-term employee …. in respect of my conditions of employment, been treated less favourably than a comparable permanent employee (and) …. seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 “

And that the Complainant:

“believes that her employer is treating her in a less favourable manner than a comparable permanent employee by employing her on successive 1-year fixed term contracts, on the first point of the incremental Scale. Ms. Lynch believes her employer is in breach of the Protection of Employees (Fixed Term Work) Act 2003 Her comparator, Ms. Aoife Lynch would be provided with a Contract of Indefinite Duration (CID) after 2 successive 1-year fixed term contracts and would then proceed on the incremental scale.”

The matter of penalisation was only canvassed on the day of the hearing and is a distinct and separate matter to which I have no jurisdiction, and I am bound by law to reject.

Contract of Indefinite Duration

The later canvassed complaint of failure to award a CID would have to have been brought under section 9 of the Act still  falls to be considered. In light of the narrative on the complaint form, even though the Complainant has failed to select the correct section of the Act, I am of the mind that the Respondent is on notice of this complainant and that the form used is not statutorily based. I am also mindful that although the Complainant had representation, that representative is not legally qualified and an exception, in those circumstances, should be made.

Contract Irregularities

An early issue arising was the copies of the contracts retained by the School for the Complainant and this arose with some heated comments  at the hearing, serving as distraction to the matters at hand. This matter was resolved at the later hearing where the mistake on the part of the school was corrected by the Barrister for the school and the explanation accepted by the Complainant that there was an error and that the later copies provided were correct. These did establish the Complainant has reached four years, and only four years,  of service albeit with minor typographical errors. It is common case between the parties that the Complainant has completed four years’ service before being terminated at the point where the final contract’s expressed fixed term nature was exhausted.  It is also common case that the Complainant expressed their hopes and lobbied the Respondent to some degree for a CID.

Conflict in Evidence

It was the evidence of the Complainant that she was told flatly by the, now retired, principal; that the DEY would never allow her to acquire a CID. The principals’  evidence, in contrary, was that she had made a comment on this to be helpful and in assistance to the Complainant where she explained that it was contrary to policy, and that  her employment in the role as an unqualified teacher was under  Circular 31/2011 and was an exceptional appointment. It was also her evidence that she had always assisted the Complainant in their broader lobbying of DEY on more broader concerns for Guidance Teachers in the same position as herself.

This was reflected in the file with the letter dated 9th October 2024 regarding the behaviour of the Complainant where they pushed themselves  into a meeting uninvited, where the then Principal was meeting with another identified individual. The principal set out in their sworn evidence that the advice given was  an explanation of the position of the department and that the department would not change that position. In such clear and opposing evidence I am forced to choose the evidence I prefer, and in this, I prefer the evidence of the principal.

Practices in Other Schools

It was referenced that other schools took a different approach in the awarding of CIDs, and it is important to note on the granting of CIDs to unqualified teachers at other schools, at or before 4 years, is that each school is a separate employer which their own responsibility and appear to be acting regardless of DEY policy.

The Complainant offered a witness in evidence to this effect, in person, and additionally offered me a letter from a teacher in Clare to the same effect. I cannot take cognisance of the letter, it being entirely hearsay, though I am grateful for the Witness who attended. Nonetheless, the actions of another school — whether taken in earnest or in error — cannot be binding on  another school employer and in such practice the CID does not arise as a matter of law, but entirely at the discretion of those employers.

Learning on the Job

It was set out that Complainant had learnt on the job and taken on additional duties regardless of the registration and qualification status. I cannot accept that the four years of on-the-job unstructured learning is a substitute for the required qualifications where the teaching council will not. It is to the credit of the complainant that they completed this work in addition to the other qualifications, but I  cannot substitute myself for  the considered policies  of the Teaching Council and/or DEY.

Decision-Making for Awarding a CID

The Respondent outlines that decisions regarding CIDs fall under the remit of DEY and  not school principals. According to the respondent, DEY has never indicated that the complainant is eligible for a CID and has classified the complainant’s employment as a fixed‑term position due to qualification requirements. It was accepted under cross-exam by the Complainant that the contracts were fixed term in nature, and this was clearly stated.

I do not agree with the Respondent that the matter of CIDs fall under the sole decision of DEY. The matter of acquiring a CID is a matter of law, and EU law at that. It is possible for any employer to award an employee with any service a CID at their own discretion, but all would be naturally restrained by the financial imperative placed upon them, in this case the funder has placed restrictions to which the Respondent has agreed and honoured.

In this matter, it is very clear to me that the Complainant has not acquired the service to qualify for a CID under the Act  on the basis of their lack of service; in line with the Act. This in itself is not controversial between the parties, Importantly, there is no complaint of a s13 penalisation properly  before me that would allow me to consider the Respondent malign in avoiding any arising responsibility under s9.

Substitution and Croke Park Hours

Regarding the additional Croke  Park responsibilities, this is something of an anomaly but arises from national negotiation that apply to teaching posts regardless of registration status and may be  the formation of a different complaint, but I cannot accept that it makes a person a registered teacher in the absence of the required qualifications and registration.

Less Favourable Treatment

Qualifications and Registration.

The Respondent states that the complainant is not a qualified teacher, lacks recognised teaching degrees, and therefore does not have full Teaching Council registration. Temporary permission to employ the complainant was granted only due to the teacher shortage, and the respondent indicates this was explained to the complainant from the outset. It is the contrary claim on the Complainant that they are de facto qualified by years of service and experience. I cannot accept this as a fact, the DEY circular carries a considerable amount of authority, and it is clear that permanent teachers must be appropriately registered and qualified. It is clear to me that the Complainant is a highly intelligent, qualified and experienced person, but this is not the same as being registered and qualified for the purposes of the circular and the Teaching Council.

Exceptional Capacity Employment

The respondent states that the Board of Management employed the complainant for three years solely due to staffing shortages and that, if a qualified teacher had applied, the complainant could not have been retained. This is clearly set out in the circular and the contracts between the parties sets out the exceptional nature of the employment relationship.

The respondent confirms that when the complainant’s contract paperwork was submitted to the DEY, it was returned and categorised as “exceptional capacity,” meaning the complainant may only be employed on a fixed‑term basis. They emphasise that this determination is made exclusively by the DEY. I have to accept that the DEY acquires its competence in this area ultimately from the Oireachtas and is entitled to set reasonable boundaries as to access to roles and make necessary exceptions, as it finds appropriate.

It is noted that the finally agreed contractual documentation points to this position and  there is no case for the Complainant to say that they were unaware of this.

Comparator

The Complainant has put forward a named comparator, and the  respondent disputes the relevance of comparing the complainant with another staff member who is a fully qualified  and registered teacher.

As the comparator is a qualified teacher who has followed the DEY preferred route  of registration and teaches additional subjects, I cannot accept the comparator argument. The complainant and comparator are not alike. The differential treatment arises from qualification requirements and government policy, not from any personal characteristic of the complainant, and the roles and responsibilities are not the same.

The Act at section s5(2)(a) that each or both are “interchangeable with the other in relation to the work”. Clearly, they are not interchangeable where the other person has the ability to teach other core subjects and is appropriately qualified and preferably registered. It seems more correct to me  that  the complainant’s concerns should be directed toward the DEY and Teaching Council, which controls the registration and  qualification policy and seek changes there.

Conclusion

On the issue of alleged less favourable treatment, the comparator relied upon by the Complainant is not an appropriate comparator. The comparator holds different qualifications, is fully registered with the Teaching Council, and is capable of teaching additional subjects. The Complainant and the comparator are therefore not in like circumstances and are not interchangeable.

Section 6 of the Act provides that a fixed-term employee shall not, in respect of their conditions of employment, be treated in a less favourable manner than a comparable permanent employee unless such treatment is justified on objective grounds. Where objective grounds exist, subsection (2) permits differential treatment notwithstanding subsection (1). The objective grounds are clear in the circular and if the Complainant had the registration and qualifications required, even as a fixed term worker they would have progressed on the scale.

The Complainant’s rate of pay does not arise from their fixed-term status. Rather, they are paid on a separate, single-point scale applicable to unqualified teachers because their qualifications and registration are not compatible with the post envisaged by the DEY and the Teaching Council, which is a creature of statute arising the Teaching Council Act 2001 tasked with setting, amongst other things, the standard for teacher education and training.  In summary, that scale reflects the distinct status of unqualified teachers and applies irrespective of contract duration.

From my consideration of the relevant circulars, the distinction in pay arises because unqualified teachers do not hold the statutory professional qualifications or Teaching Council registration that underpin the standard teacher pay scale. Such engagement is set to only  occur in exceptional circumstances, pending the appointment of a qualified teacher. To extend the same terms and conditions to unqualified and unregistered teachers would undermine the statutory framework governing teacher registration and qualification standards. I am satisfied that the difference in treatment pursues a legitimate objective and is necessary and proportionate. Accordingly, the treatment complained of is objectively justified within the meaning of section 6(2) of the Act.

I also note that the Complainant sought, by way of submissions and at the hearing, to introduce additional complaints, including allegations of penalisation. These matters were not included in the original referral to the Commission dated 30 September 2024, and the Respondent has objected to their inclusion. I have no jurisdiction to determine those issues and can make no findings in that regard.

Turning to the complaint properly before me, namely alleged less favourable treatment in comparison to a permanent employee, I find that no breach of section 6 of the Protection of Employees (Fixed-Term Work) Act 2003 has been established

For all of the reasons set out above, I find that the complaint referred  is not well founded

For all of the reasons outlined above, I do not find the complaint referred is  well-founded.

less favourable treatment – comparator – objective justification –qualification and registration– penalisation – jurisdiction – Exceptional appointment - Complaint outside referral