Complainant

Respondent

Parties

Julie  Fitzpatrick

Board Of Management Of St.Mary's CBS

Representatives

Eoghan Ryan Association of Secondary Teachers in Ireland

Catherine Kelly Mason  Hayes & Curran LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00068916-001

29/01/2025

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

CA-00068916-002

29/01/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00068916-003

29/01/2025

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

CA-00068916-004

29/01/2025

The Complainant is a qualified and registered post primary teacher, who commenced employment with the Respondent on 4 November 2024 on a full time, fixed term basis.  She earned €1,778.84 per fortnight and worked a full 22-hour teaching timetable.  The Complainant alleged that she was not provided with any contract by her employer having commenced employment in November 2024 and that when eventually she was provided with a contract, it specified an incorrect start date of 6 January 2025.  She also alleged that she was not provided with any objective justification for the fixed term basis of her contract following commencement of her employment in November 2024, that she was not paid for holiday pay during the Christmas school holidays and was not paid her fortnightly wage on 23 January 2025.  She also alleged that she was penalised by her employer for invoking entitlements under the Protect of Employees (fixed term work) Act, 2003. 

The Respondent conceded the complaint in relation to the non-provision of a contract of employment but denied the other allegations.

CA 000 68916 – 001 Terms of Employment (Information) Act 1994

In her complaint form, the Complainant stated that she was not provided with any contract by her employer having commenced employment in November 2024.  She stated that when she was provided with contracts, they specified start dates of 6 January 2025. 

In her submission the Complainant outlined that she was initially offered her position by way of text message from the Principal on 29 October 2024 and that this message advised that the decision was to be fixed term until the end of May but no further details were provided. 

She submitted that the next correspondence she received in relation to her working hours was an email from the Principal on 4 December 2024, stating that her hours would be reduced to 12 hours per week from 16 December 2024 as the Department had “pulled back some of our hours”.  A follow up email from the Principal subsequently increased her hours to 17 hours per week from 6 January 2025 as the Department had now “sent me an additional five hours”. 

The Complainant submitted that the ASTI wrote to the Principal on 9 December 2024, raising the issue of, amongst other things, non-provision of a contract.  No response was received and a follow up email was sent on 12 December 2024.  A further email was issued to the school on 18 December 2024 as no response was forthcoming and the Complainant remained at a loss as to what were her contractual obligations to the school, to the extent that she presented to work on 16 December 2024, without having been provided with an updated timetable.  The last email specified that the ASTI were “concerned that there are ongoing breaches of the Terms of Employment (information) Act, due to non-provision of a contract for Julie”. 

The Complainant submitted that the Principal eventually responded on 18 December 2024 stating, amongst other things, as follows: “I contacted Julie during my midterm break, and no office staff were in school to do contracts.  I put my hand up and say yes, she should have got the contract but we were overwhelmed for the month of November”.

The Complainant submitted that as such it was her position that the breach was conceded and so her representative sought the maximum award of four weeks salary as the situation caused profound distress to the Complainant, faced with a significant, unforeseen cut in income, in the run up to Christmas. 

CA 000 68916 – 002 Protection of Employees (Fixed Term Work) Act 2003

In her complaint form, the Complainant submitted that she was not provided with any objective justification for the fixed term basis of her contract following commencement of her employment in November 2024. 

In her submission, she outlined that no objective justification for the fixed term basis of her contract was provided as soon as practical following commencement of employment in November 2024, constituting a breach of Section 8 (1) of the Protection of Employees (fixed- term work) Act, 2003.  She submitted that while the Principal argued in her correspondence of 18 December 2025 that the delay was due to various factors, it was not plausible that she had the time to engage with the Department around amendments to the Complainant’s contract in circumstances where the initial required paperwork to be provided to her, had not even been completed. 

The Complainant submitted that she was eventually provided with three contracts on 20 December 2024, but each had the incorrect commencement date of 6 January 2025.  She submitted that her representative subsequently attempted to engage with the school to resolve those issues and wrote to the Principal on 24 January 2025 outlining concerns and suggesting a meeting to go through those concerns, however the school did not respond to that suggestion.

The Complainant submitted that the Principal wrote to the Complainant on 24 February 2025 proposing a meeting the following day to deal with the various issues, to which the Complainant responded that she was happy to attend with her ASTI official, but that he wasn’t available on the day in question and that she and her representative were willing to meet at the next available opportunity.  The Complainant submitted that again there was no response from the school and that as such, not alone was she never provided with a correct contract, but the school frustrated all attempts to resolve same, thus requiring referral of the matter to the WRC. 

CA 00068916-003 Payment of Wages Act, 1991

The Complainant confirmed at hearing that the above complaint was withdrawn.

CA 000 68916 – 004Protection of Employees (Fixed Term Work) Act 2003

The Complainant submitted that she was refused permission to attend SPHE training having previously been granted permission to do so before she sought to invoke the Protection of Employees (Fixed- Term Work) Act, 2003.

In her submission, the Complainant submitted that she was originally granted permission to attend a two day SPHE training on 20 and 21 November 2024.  She submitted that this training was postponed and rescheduled for 4 and 5 March 2025, but that she was then refused permission to attend and it had been decided that only tutors could attend, despite the Complainant having already been registered to attend.  The Complainant stated that when she sought clarification as to who was attending from her school, no response was forthcoming.

The Complainant noted that previous permission given to her to attend the SPHE training had now been withdrawn, which appeared to be a prima facia case of penalisation for raising her contractual entitlements, contrary to the Protection of Employees (fixed-term work) Act, 2003.  As the school had not provided any corroboration of the basis for this decision, it was the position of the Complainant that penalisation occurred and a significant award would be just and equitable given the school’s attempts to deter the Complainant from enforcing her statutory rights.   

Representations at hearing:

CA 000 68916 – 001 Terms of Employment (Information) Act 1994

Mr Ryan stated that in relation to the award for the delay in issuing the contract of employment, he believed that the maximum award should be applied, that this would be what would be just and equitable in all of the circumstances.  He stated that he understood that this was a busy time for the school, but that it was a busy time for all schools and that all that was required was paperwork to provide the Complainant with a contract of employment soon after she commenced employment.  He stated that efforts to resolve the situation had been ignored by the Respondent and that it seemed to be an intentional delay not to issue the contract in light of the reduction in hours which was subsequently notified to the Complainant.  He stated that the situation had caused a considerable distress to the Complainant. 

CA 000 68916 – 002 Protection of Employees (Fixed Term Work) Act 2003

Mr Ryan noted that the contract was intended to relate to maternity cover but he noted that of the 22 hours contained in the contract, only six of those hours related to the maternity leave arrangement.  He stated that failure to issue the contract and provide clarity resulted in the cutting of hours and in relation to the whole question of the entitlement of the Complainant to holiday pay.  In all the circumstances he stated that a significant award would be appropriate in the circumstances.

CA 000 68916 – 004Protection of Employees (Fixed Term Work) Act 2003

Mr Ryan outlined that the correct contract of employment had never been provided to the Complainant.  He stated that it was not unusual for teachers to look to upskill and that the Complainant had simply sought to do so.  He stated that initially the Complainant had been provided with approval to attend the course and had been registered to attend the course.  He acknowledged that the Complainant had then raised her concerns under the Fixed Term Work Act and although the Respondent made no mention of that protected Act, they withdrew approval for her to attend the training course, providing no reason for that change.  In those circumstances Mr Ryan stated that it was not difficult to form the view that the Complainant was penalised for having made a complaint. 

Witness evidence – the Complainant:

The Complainant confirmed that she commenced employment on 4 November on a fixed term contract to the end of May 2025.  She confirmed that she saw the advertisement for the position and that she applied for same. 

Cross examination of the Complainant:

The Complainant confirmed that she did see the advertisement for the position and made her application based on that advertisement.  The Respondent representative put it to her that the advertisement clearly set out the status of the position, that it was for a specified purpose contract to cover maternity leave.  The Complainant confirmed that she couldn’t recall, but at the hearing she reviewed the document in the Respondent submission and confirmed that yes, it did set out that it was a specified purpose contract.  In that context she confirmed that she was aware that she was applying for a position to cover maternity leave.

The Complainant confirmed that she did eventually receive contracts of employment, and she further confirmed that she did not sign such contract.  She advised that her reason for not doing so was because the dates were wrong.  She confirmed that one of the contracts set out the purpose of the contract was to cover maternity leave and she confirmed that the hours she was contracted to were previously worked by the person who was on maternity leave.  In response to a question from the Adjudication Officer, the Complainant confirmed that she received the three contracts when they were issued to her on 20 December.

The Complainant Closing Remarks:

Mr Ryan stated that much of the substance of the case was not in dispute between the parties, but that at it’s heart was a simple claim that a contractual arrangement was not adhered to and this caused significant difficulty for the Complainant.  He stated that the breaches of the employment law were clear and that the Respondent’s reluctance to engage on the matter, had been detrimental to any argument of mitigation and therefore the maximum award should be applied. 

Introduction

The Respondent submitted the following sequence of events:

·         that in late 2024 the Respondent advertised for a fixed-term position for 22 hours per week to cover a maternity leave absence.

·         That on 17 October 2024 the Complainant applied for the position under cover of email.

·         That the Complainant subsequently commenced her employment with the Respondent on 4 November 2024.

·         That due to a very busy period within the Respondent school, the Complainant did not receive terms and conditions of employment.

·         That following engagement from her trade union, the ASTI, the Complainant did subsequently receive terms and conditions of employment in the form of three fixed-term contracts

·         That the three contracts issued to the Complainant were to reflect the various differing allocation of hours. The Complainant did not sign these contracts.

·         That on 4 December 2024, the School Principal made contact with the Complainant and explained to her that there had been a reduction in the allocation of hours to the Respondent school, and that as such her position would be for 12 hours per week. A portion of these hours was subsequently restored.

·         That the Complainant’s representative wrote to the Respondent on 9 and 12 December 2024 enquiring regarding terms and conditions of employment. On 18 December 2024 the School Principal replied setting out clarification in relation to some factual matters

·         That’s on 29 January 2025 the Complainant referred a complaint to the workplace relations Commission

CA 000 68916 – 001 Terms of Employment (Information) Act 1994

In its submission the Respondent conceded this complaint.  The Respondents submitted that in considering any award of compensation the mitigating factors communicated to the Complainant’s adviser on 18 November, 2024 should be taken into consideration.

The Respondent submitted that the Complainant began work on 5 November, 2024 and that the Respondent had its first Pre-Evaluation day on WSE – MLL on 6 November, 2024.  The following week the Respondent had three-day inspection.  The Respondent submitted that the Principle contacted the Complainants during the mid-term break as there were no office staff available in the school to do contracts.  The Respondents acknowledged that the Complainant’s should have received a contract but the Respondent indicated it was overwhelmed for the month of November.  The Principle was dealing with a data access request around that time and secretaries were busy providing information in relation to a protected disclosure.

CA 000 68916 – 002 Protection of Employees (Fixed Term Work) Act 2003

The Respondent noted section 8(1) of the Protection of Employees (Fixed Term Work) Act 2003 (hereinafter “the 2003 act”) which provides as follows:

(1)   “Where an employee is employed on a fixed term contract the fixed term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is –

(a)   arriving at a specific date,

(b)   completing a specific task, or

(c)    the occurrence of a specific event”

The Respondent submitted that the advertisement to which the Complainant responded indicated clearly that the position was for the specific purpose of covering maternity leave.  The Complainant was subsequently provided with a fixed term contract indicating as follows:

“you were employed as a fixed term teacher to cover maternity leave for the 2024/2025 school year.”

The Respondent submitted that both the advertisement and the contract itself set out the objective criteria.  In so far as there was a delay in issuing of a fixed term contract, the Respondent submitted that it was provided as soon as practicable in the circumstances as outlined by the school principal in her communication to the Complainant’s trade union representative on 18 December 2024.  The Respondent submitted that in the circumstances the complaint was not well founded.

CA 000 68916 – 004Protection of Employees (Fixed Term Work) Act 2003

The Respondent noted section 13 of the 2003 act which provides:

(1)   “An employer shall not penalise an employee –

(a)    For invoking any right of the employee to be treated, in respect of the employee’s conditions of employment, in the manner provided for by this Part,

(b)   For having in good faith opposed by lawful means an act which is unlawful under this act,

(c)    For giving evidence in any proceedings under this act or for giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a) or (b), or

(d)   By dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed term contract being deemed to be the contract of indefinite duration under section 9(3).

(2)   For the purposes of this section, an employee is penalised if he or she -

(a)    Is dismissed or sufferers any unfavourable change in his or her conditions of employment or any unfair treatment (including selection for redundancy), or

(b)   Is the subject of any other action prejudicial to his or her employment. 

The Respondent noted the WRC decision in the case of Linehan v Board of management of Gaelscoil An Raithin ADJ -000 44529 in which the Adjudication Officer considered the principles which apply to penalisation under the 2003 Act and noted as follows:

“There is significant case law arising from penalisation most notably under Safety, Health & Welfare at Work Act 2005 which can be applied in this instant case whereby the Labour Court sets out there is a requirement “to show a chain of causation between the impugned detriment and the protected act or omission”.  It further noted the case of Oglaigh Naisiunta na hEireann c McCormack (HSD/115) where it was determined that “It must be satisfied that a protected act or acts has or have taken place as described in the act at Section 13.  Secondly, it must be satisfied that the Complainant suffered a detriment during the relevant period as described in the Act at Section 13(2).  Finally, it must be decided whether the detriment was suffered because the Complainant committed a protected act.”

The Respondent also noted the principles set out in O’Neill v Toni & Guy Blackrock Ltd. [2010] ELR 1 as follows:

“The Complainant must establish, on the balance of probabilities that he made complaints concerning health and safety.  It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal.  If those two limbs of the test are satisfied it is for the Respondent to satisfy the court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the Complainant’s dismissal.

In all of the circumstances the Respondents submitted the following:

(i)      That there had been no projected act for the purposes of the 2003 act.  The communications received by the Respondent from the Complainant’s representative related to the provision of terms and conditions of employment, and not to issues arising under the 2003 act.

(ii)    That non-attendance at an event did not amount to penalisation in the circumstances;

(iii)  That without prejudice to the above, there was simply no causal link between the raising of such an issue, and the Complainant’s non-attendance at the SPHE course.  The Complainant did not teach SPHE, the Respondent school had 18 SPHE teachers, and only four such teachers were permitted to go on the course.

The Respondent submitted that the Complainant was not entitled to the relief sought or at any relief.

Representations at hearing:

Mr Roche summarised the Respondent position as follows:

·         That in late 2024, the Respondent advertised a fixed term contract for 22 hours per week to cover maternity leave

·         That on 17 October 2024, the Complainant applied for the position and commenced employment on 5 November 2024

·         That this was a busy period for the school and it was accepted that the Complainant had not received the terms and conditions and so that case was conceded

·         On 4 December the contracted hours were reduced to 10 hours per week due to changes in provisions from the Department of Education

·         The ASTI wrote to the school on 9 December raising a query in relation to this matter and sent a follow up letter on 12 December

·         On 18 December the school Principal replied and explained the delay

·         On 29 January 2025 the Complainant referred her complaints to the WRC

CA 000 68916 – 001 Terms of Employment (Information) Act 1994

Mr Roche confirmed that CA-00068916-001 was conceded by the Respondent but asked that the mitigating factors outlined in the submission be taken into consideration when considering compensation.

CA 000 68916 – 002 Protection of Employees (Fixed Term Work) Act 2003

Mr Roche noted that the Complainant had claimed that she did not receive the objective reason for the fixed term contract and argued that in the first instance the objective of the contract was made clear in the advertisement, that it was a position covering maternity leave.  He stated that this was subsequently provided for with three contracts with various hours in each contract, all of which were to cover for maternity leave.  He stated that at all stages, the objective conditions were set out and were in the contract. 

CA 000 68916 – 004Protection of Employees (Fixed Term Work) Act 2003

Mr Roche noted that the Complainant argued that she was prevented from attending the SPHE course because she had raised an issue in relation to the fixed term work Act.  He stated that in that regard, a person making such a complaint must establish “(i) a protected Act, (ii) the detriment and (iii) what impact this had”.  He stated that the test for penalisation was set out in their submission in the case of Toni & Guy.  He stated that it was clear that there was no protected act undertaken by the employee under the 2003 Act, and that the issues raised related to the 1994 Act.  He stated that non-attendance at an event does not amount to suffering a detriment and he stated that furthermore the Complainant was not an SPHE teacher.  He stated that there was absolutely no causal link between the non-attendance at the training and her raising the issue in relation to the fixed term work Act.  He stated that the Respondent had 18 SPHE teachers and only four of those teachers went on the programme. 

Witness evidence – Ms Murphy:

Ms Murphy confirmed that she was Principal of the school and that in October 2024 she posted an advertisement for a job vacancy.  She stated that it was advertised as a specific purpose to cover maternity leave arrangements.  She stated that the hours associated with that post were 22 hours per week. 

Ms Murphy confirmed that there were a number of maternity leaves at the time, two in the SEN Department, one maternity leave to the end of November and one maternity leave to the end of December.  She stated that in relation contracts of indefinite duration, there was always movement and change within the staffing complement.  She stated that when they became aware of the vacancy in October, she formed the view that they could make it work.  Ms Murphy confirmed that following the advertisement, there was only one application for the post.  She stated that she knew the Complainant for a number of years and that when she discussed the post with her, the Complainant agreed to go away and think about it.  Ms Murphy confirmed that the maternity leave was a mixture of hours from two different teachers, mainly in numeracy work but with some literacy work involved.    She stated that she always maintained an open door and felt that staff could approach her and chat to her about any concerns and that she was surprised when the Complainant put her query in an email.  She stated that the Complainant queried her holiday pay, that this was not applicable to a fixed term contract.

Ms Murphy confirmed that the Complainant began employment in November and that it was a very busy time with two inspections and an FSSU audit.  She stated that administration were very busy collating files and addressing Freedom of Information requests.  She stated that it was absolutely incorrect to suggest that there was some deliberate intent about the delay in issuing the contract.  She stated that she fully understood how important a contract was to every employee and that she always wanted to make sure that employees would get paid, including the Complainant.  She stated that the Department pulled back hours but that she did make sure that the Complainant received her full pay and that she always made herself available to meet and talk.  She confirmed that she did receive the email from Mr Ryan of the ASTI in relation to the terms of employment and the follow up letter and that she did respond to him on 18 December.  She confirmed that the reason for allocating three contracts was because there were varying allocations of hours and that she could only pay what was provided for.  She confirmed that an administrative employee had put the contract date of January in the contract when they were issued and that she did so because most of the maternity leave hours were done but in recognition that the Complainant would be in employment until the end of May.  She stated that there was some debate about whether it should be backdated or whether it should be dated from close to the date it was issued.  Ms Murphy confirmed that there was no dispute in relation to the commencement date of employment of the Complainant.  She stated that at all times the Complainant was aware that the employment was on a fixed term basis. 

Cross examination of Ms Murphy:

Under cross examination, Ms Murphy confirmed that the advertisement was for fixed term employment of 22 hours per week, up to the end of May 2025.  She confirmed that she was engaged in discussions with the Department of Education in the timeframe between the Complainant commencing employment and the issuing of the contracts.  She confirmed that following negotiation with the Department, they reassessed the situation and this resulted in a shortfall of hours for only one week and that in those circumstances, the Respondent had paid the Complainant for that shortfall.  She confirmed that although she had an open-door policy, she did send the information about the cut in hours in writing because she felt it was necessary and more professional to do so.  She said she believed it was important that employment matters should be put in writing. 

In relation to a query from Mr Ryan about the lack of engagement with the union on the matter, Ms Murphy confirmed that she didn’t see the point of entering a consultation process that she never had before and that she had never had anything of this kind before.

The Respondent Closing Remarks:

CA 000 68916 – 001 Terms of Employment (Information) Act 1994

Mr Roche stated in relation to CA-00068916-001 that it was conceded that it was unsatisfactory that the contracts did not issue within the prescribed timeline but he stated the reasons for the delay were clearly outlined and that there was no option under the Act for damages.

CA 000 68916 – 002 Protection of Employees (Fixed Term Work) Act 2003

Mr. Roche stated that the Complainant was fully aware that the position was to cover for maternity leave absence and that at all states she knew the purpose of the contract, that it was in the advertisement and it was ultimately in the contracts issued.  Not only that, he stated that the person(s) that she was covering for, were on maternity leave and that this was the only matter that was before the Adjudication Officer for consideration.

CA 000 68916 – 004Protection of Employees (Fixed Term Work) Act 2003

In relation to penalisation Mr Roche stated that there was no evidence of penalisation, none given directly by the Complainant, nor given by her under cross examination.  He stated that the Adjudication Officer must act within the 2003 Act, and the Workplace Relations Act.  He stated that penalisation must relate to the statutes under which the employee has taken a case and that it was factually and legally incorrect of the Complainant to suggest otherwise.  He stated that circumstances where no evidence was called and no cross examination had taken place, that the tests simply were not met.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties, as well as evidence provided at hearing by the parties and representations on their behalf. 

CA 000 68916 – 001 Terms of Employment (Information) Act 1994

The Complainant alleged that she did not receive a contract of employment until 20 December 2024 although she commenced employment on 4 November 2024. The respondent conceded the claim and provided an explanation for the delay in issuing the contract. The complainant alleged that the delay was deliberate and was due to the respondent requiring future changes to the hours of work.

Section 3(1) of the Act states that

“an employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing ….”

It is common case that the Complainant commenced employment on 4 November 2024 and that the Respondent did not provide a contract of employment to the Complainant until 20 December 2024 at which time the Respondent provided 3 separate contracts of employment.  Despite the Respondent conceding the claim in order to determine the quantum of redress I will set out my findings in relation to the breach of the Act.

In accordance with the above statutory provision the Complainant was entitled to receive her contract of employment within 2 months of her start date.  Upon closer examination of the advertisement and the contracts ultimately issued by the Respondent I noted as follows:

·         That the Respondent advertised for a specific purpose position covering maternity leave for 22 hours per week

·         That the Complainant accepted that position by text message to the Principal on 29 October 2023 and which time the Principal recorded on the advertisement that the position would be in place to the end of May 2025

·         That the Complainant did commence employment on 4 November 2024, working 22 hours per week

·         That the Complainant was notified on 4 December 2024 that her hours would reduce to 12 hour per week

·         That on 20 December 2024 the Complainant received 3 contracts of employment

o   Contract 1 – this contract confirmed that the Complainant was to be employed from 6 January 2025 to 11 April 2025 as a fixed term teacher to cover Special Education Teaching allocation hours for the 2024/2025 school year.  The contract was for 5 hours per week.

o   Contract 2 – this contract confirmed that the Complainant was employed to cover a maternity leave from 6 January 2025 until the return to work or resignation of the post holder or 30 May 2025, whichever is earlier.  The contract was for 5 hours and 5 minutes per week.

o   Contract 3 – this contract confirmed that the Complainant was employed as a fixed-term teacher for the 2024/2025 school year.  The start date of the contract was confirmed as 6 January 2025 and the contract confirmed that it “will terminate on 30 May 2025” The contract was for 11 hours per week.

Based on the above I note that the Complainant never actually received a contract to cover her initial period of employment from 4 November 2024.  It is clear that she was originally offered employment from 4 November 2024 to the end of May 2025 covering maternity leave for 22 hours per week.  The fact that she never received a contract confirming those original terms and thereafter received a contract from 6 January resulted in a break in her service over the Christmas period. 

In all the circumstances I find that the Complainant’s complaint is well founded.

CA 000 68916 – 002 Protection of Employees (Fixed Term Work) Act 2003

The Complainant alleged that she was not provided with any objective justification for the fixed term basis of her contract following commencement of her employment in November 2024.  The Respondent denied the allegation and instead contended that the Complainant applied for the position with the Respondent based on an advertisement that clearly indicated that the role was for covering maternity leave.  The Respondent also contended that the Complainant received three contracts, each one aligned with the maternity leave arrangements of individual colleagues.

Section 8(1) of the Protection of Employees (Fixed Term Work) Act 2003 (hereinafter “the 2003 act”) provides:

(1)   “Where an employee is employed on a fixed term contract the fixed term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is –

(a)   arriving at a specific date,

(b)   completing a specific task, or

(c)    the occurrence of a specific event”

It is clear, from the documentation provided that the Respondent advertised a position for maternity cover for 22 hours per week.  The Complainant accepted the position on those terms and commenced employment on 4 November 2024 under those terms of employment.  Thereafter, she received 3 separate contracts of employment on 20 December as follows:

o   Contract 1 – this contract confirmed that the Complainant was to be employed from 6 January 2025 to 11 April 2025 as a fixed term teacher to cover Special Education Teaching allocation hours for the 2024/2025 school year.  The contract was for 5 hours per week.

o   Contract 2 – this contract confirmed that the Complainant was employed to cover a maternity leave from 6 January 2025 until the return to work or resignation of the post holder or 30 May 2025, whichever is earlier.  The contract was for 5 hours and 5 minutes per week.

o   Contract 3 – this contract confirmed that the Complainant was employed as a fixed-term teacher for the 2024/2025 school year.  The start date of the contract was confirmed as 6 January 2025 and the contract confirmed that it “will terminate on 30 May 2025” The contract was for 11 hours per week.

Although the Complainant did not receive a written contract of employment from 4 November it seems evident to me that she was working under a fixed term contract of employment from that date.  She was then provided with 3 contracts, only one of which related to maternity leave cover (Contract 2) The remaining two contracts were to cover Special Education Teaching hour for 5 hours per week and simply on a fixed -term basis to 30 May 2025. 

I do not accept the Respondent position that it was evident from the advertisement that the Complainant knew that her role was to cover for maternity leave.  While the advertisement did clearly set down that the position was to cover for maternity leave for 22 hours per week and while the Complainant began her employment on those terms it became apparent less than 2 months into her employment that the Respondent was proposing to cut her hours significantly.  I recognise that ultimately the reduction never occurred but rather than resolving the situation on that basis the Respondent issued 3 new contracts, only one of which related to maternity cover and with different end dates in at least one contract than that which the Complainant accepted initially.   There is no evidence that the Respondent set out to the Complainant the objective reason for these new contracts.  In fact, the Respondent disregarded all attempts by the Complainants representatives to engage to resolve matters, leaving the Complainant in a state of confusion and anxiety about the tenure of even her short-term contract.

Based on the above I find this complaint to be well founded.

CA 00068916-003 Payment of Wages Act, 1991

The Complainant confirmed at hearing that this complaint was withdrawn.

CA 000 68916 – 004Protection of Employees (Fixed Term Work) Act 2003

The Complainant alleged that she had been penalised by the Respondent for having raised complaints under the act and that the penalisation took the form of her being stopped from attending a specific training course.  The Respondent denied the allegation in its entirety.

Section 13(1) states that

“An employer shall not penalise an employee –

(a)   For invoking any right of the employee to be treated, in respect of the employee’s conditions of employment, in the manner provided for by this Part,

(b)   For having in good faith opposed by lawful means an act which is unlawful under this Act.

(c)    For giving evidence in any proceeding under this Act or for giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a) or (b), or

(d)   By dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3)”

Section 13 states that

“For the purposes of this section, an employee is penalised if he or she –

(a)   Is dismissed or suffers any unfavourable change in his or her conditions of employment or any unfair treatment (including selection for redundancy), or

(b)   Is the subject of any other action prejudicial to his or her employment”

The Complainant must establish, on the balance of probabilities that he made complaints concerning health and safety.  It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal.  If those two limbs of the test are satisfied it is for the Respondent to satisfy the court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the Complainant’s dismissal.

It is well established that to succeed in a complaint of penalisation the Complainant must

(i) Establish that he or she made a complaint in accordance with the relevant legislation

(ii) Demonstrate that he or she suffered a detriment

(iii) Show a causal link between his or her complaint and the detriment suffered.

The Complainant first raised concerns regarding her circumstances with the Respondent through her representative on 9 December 2024.  That correspondence raised concerns about a proposed reduction in hours but did not raise any complaint under the Protection of Employees (Fixed-Term Work) Act and the subsequent letter of 12 December 2024 merely acts as a reminder. The Complainant representative wrote again on 18 December 2024 seeking a response to earlier correspondence and on this occasion raised concerns about ongoing breaches of the Terms of Employment (Information) Act.  The content of these correspondences would not constitute a protected act under the Protection of Employees (Fixed Term Work) Act 2003 and I accept the Respondent position in this regard.  The Complainant did not, in either submission or in direct evidence, provide any other information to establish that she made a protected act.

In these circumstances I find that the Complainant has failed to establish that that she made a complaint under the Protection of Employees (Fixed Term Work) Act 2003 and I therefore find that this complaint is not well founded.

CA 000 68916 – 001 Terms of Employment (Information) Act 1994

I found thatthis complaint was well founded and I decide accordingly. 

Section 7(2)(e) provides that an Adjudication Officer may

“order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 4 weeks remuneration in respect of the employee’s employment.”

In considering the appropriate level of compensation to apply in this instance I am cognisant of the impact of the uncertainty caused to the Complainant arising from the failure to provide an initial contract but also the evidence of the Principal that despite changes externally imposed, the Complainant’s wages were maintained.  In all of the circumstances I direct the Respondent to pay the Complainant 3 weeks salary as compensation.

CA 000 68916 – 002 Protection of Employees (Fixed Term Work) Act 2003

I found this complaint to be well founded. 

Section 14(2)(d) of the Act states that an Adjudication Officer may

“require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee’s employment”.

In considering this matter I have formed the view that the Complainant was significantly discommoded by the lack of a contract in the first instance and by the lack of transparency in relation to the issuing of 3 new contracts to her in late December 2024 and I have factored this into my deliberations on what compensation is “just and equitable” in the circumstances.  I have also taken account of the fact that the Respondent ensured that the Complainant received all remuneration that would have resulted had she been issued with one continuous contract and I have no doubt that the Principal, acting on behalf of the Respondent, made significant efforts to address the matter of available hours with the Department in order to secure the Complainant’s employment.

In all the circumstances I direct the Respondent to pay the Complainant 6 weeks pay as compensation for the breaches of the act.

CA 00068916-003 Payment of Wages Act, 1991

This complaint is withdrawn at hearing.

CA 000 68916 – 004Protection of Employees (Fixed Term Work) Act 2003

I found that this complaint was not well founded and I decide accordingly.

Terms of employment, fixed-term work, penalisation