FULL RECOMMENDATION
SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : MARIAN COLLEGE (REPRESENTED BY ARTHUR O'HAGAN SOLICITORS) - AND - AISLING RUSSELL (REPRESENTED BY ASTI) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Decision R-038859-FT-05/MMG.
BACKGROUND:
2. The College maintains that the Respondent was well aware that the basis for her employment has been as a direct result of the allocation by the Department of Education of concessionary hours to the College for English language support. The Respondent has signed several contracts confirming the origin of the post as a non-national post/non-national support post. The College also maintains that since 2003 the Respondent has been employed consistently for the specific purpose of teaching, inter alia, ESL. The Principal of the College has engaged in full discussion with the Respondent about the allocation of hours and other issues of concern to her and has taken her concerns on board insofar as the Principal is in a position to do so.
The Respondent has been employed by Marian College since 2001. Between September 2001 and June 2006 she was employed on a series of Fixed-Term Contracts. In August 2005 the Respondent requested a Contract of Indefinite Duration(CID) but was refused at that time. She was subsequently offered a CID in February 2006.
The Respondent alleges that she was initially employed to teach English and Geography. When the timetable issued in August 2002 she was also timetabled to teach English as a Second Language (ESL). The Respondent does have a diploma in teaching English as a foreign language (TEFL).
Over the following years the Respondent was timetabled for fewer hours in English and Geography and more hours teaching ESL classes. In 2006/2007 she contends that she was timetabled to teach ESL only. The Respondent considers that this timetabling was directly related to her seeking a contract of indefinite duration. The Respondent had expressed her reservations about teaching so many ESL classes with the Principle on numerous occasions from 2002 onwards.
In December, 2005 the Respondent submitted a claim to the Rights Commissioner pursuant to Section 14 of the Protection of Employees (Fixed-Term Work) Act 2003. The Rights Commissioner found that she had a valid claim in part in that a Contract of Indefinite Duration was not issued at the appropriate time.
In relation to the College he found as follows:-
"I believe the structure of the timetable is the responsibility of the College, however in good industrial relations they must have agreement and understanding with their employees and be able to demonstrate that their compliance with Section 6 re Fair and Equitable treatment is evidenced."
The Rights Commissioner also awarded the Respondent compensation in the sum of
€3,000.
The College appealed the Rights Commissioner's decision to the Labour Court on the 9th July, 2007. The Labour Court hearing took place on the 10th December, 2007
DETERMINATION:
This is an appeal by Marian College against a decision of a Right’s Commissioner.
Ms. Russell was employed on successive fixed term contracts with the College from September 2001 until June 2006. In December 2005 Ms. Russell brought proceedings before a Rights Commissioner where she claimed that she was treated less favourably than comparable permanent employees contrary to Section 6 of the Protection of Employees (Fixed-Term Work) Act, 2003 (the Act). Furthermore, she claimed that the College was in breach of Section 9 of the Act in not offering her a contract of indefinite duration at the expiry of her fixed term contract of employment on 1st September 2005, and of Section 13 as she was penalised when having sought a contract of indefinite duration, the College furnished her with a draft contract on terms less favourable than those offered to comparable permanent employees.
The Rights Commissioner found that the College failed to issue Ms. Russell with a Contract of Indefinite Duration (CID) at the appropriate time contrary to Section 9 of the Act. No decisions were given under Sections 6 and 13. He awarded the Complainant €3000 compensation and ordered the College to issue her with a contract of indefinite duration confirming her hours of work in comparison to other teachers and by agreement with her.
For ease of reference Ms. Russell is referred to as the "Complainant" and Marian College is referred to as the "Respondent".
Background
Ms. Russell was employed by the College since 2001 under successive fixed term contracts during the following school years:
September 2001 - June 2002
September 2002 - June 2003
September 2003 - June 2004
September 2004 - June 2005
September 2005 - June 2006
In August 2005, the Complainant requested a CID, which was refused and she was instead provided with a further fixed term contract. In February 2006 she was offered a CID. However, she refused it as she alleged that the terms were less favourable than comparable permanent employees.
The Complainant is qualified as an English and Geography teacher, holding a Higher Diploma in these subjects. She also has a Diploma in Teaching English as a Foreign Language (TEFL). She maintained that her allocation of teaching hours in the various subjects were as follows:
| School Year | English | Geography | ESL |
| 2001 - 2002 | 12 hrs 25 mins | 3 hours | 7 hours |
| 2002 – 2003 | 6 hrs 15 mins | 6 hours | 9 hrs 45 mins |
| 2003 - 2004 |  | | |
| 2004 – 2005 | | | |
| 2005 - 2006 | | | 15 hours |
| 2006 – 2007 | no hours | no hours | 22 hours |
| | | |
-she was treated less favourably than comparable permanent employees contrary to Section 6
-the College was in breach of Section 9 of the Act in not offering her a CID, on the same terms as comparable permanent employees, at the expiry of her fixed term contract of employment in August 2005,
-the College was in breach of Section 13 in penalising her for issuing proceedings under the Act. When she objected to the terms of the draft CID in February 2006 and issued proceedings under the Act, she alleged that the Respondent penalised her by timetabling her for English as a Second Language (ESL) classes exclusively.
The Complainant’s Case
(i) Less Favourable Treatment
Counsel for the Complainant, Ms. Lorna Lynch B.L. submitted that the Complainant was treated less favourably than comparable permanent employees. The Complainant was allocated an increasing number of hours teaching English as a Second Language under each of her successive fixed term contracts and consequently had a continual reduction in her mainstream English and Geography hours. The reduction was to such an extent that in the school year 2006/2007 the Complainant was timetabled exclusively to teach ESL hours. Other English teachers (on permanent contracts) were not timetabled for ESL classes. Despite the fact that they were equally qualified. They had vastly less ESL teaching hours than she did. The permanent teacher with a post of responsibility for foreign national students was only timetabled for a tiny number of ESL classes. She maintained that the teaching of ESL classes was acknowledged among teachers in the school as being highly stressful and deskilled the individual teacher, by reason of not using her qualifications in other subjects.
Therefore, the Complainant contended that due to her status as a temporary employee on fixed-term contracts and as such being a person who would not object to having to teach ESL, she was treated less favourably and was less likely to object than a comparable permanent teacher. Furthermore, as her salary was dependent on the number of hours she worked, whereas the permanent teachers were on a fixed salary, and therefore she was in a more vulnerable position and as a result was subject to less favourable treatment by the Respondent, contrary to Section 6 of the Act.
The Complainant’s Counsel contended that the proper comparators were those permanent teachers who taught mainstream English.
(ii) Delay in issuing Contact of Indefinite Duration
Ms. Lynch submitted that the Respondent was in breach of Section 9(3) of the Act in failing to issue the Complainant with a CID in September 2005 and in failing to provide her with a contract on the same terms as those provided to comparable permanent English teachers. When the Complainant requested the CID the Respondent refused as her employment was dependent on the number of hours the Department of Education and Science allocated to the College with respect to language support for foreign national students. The first time she became aware of ongoing discussions between a number of relevant bodies concerning CID’s was on 7th December 2005, yet it was 27th February 2006 before she was issued with the contract.
(iii) Penalisation claim
The Complainant’s Counsel contended that she was not issued with the agreed CID, in accordance with the Department’s Circular 0010/06. She contended that the Respondent added an additional line in the contract:“the subjects to be taught are English as a Second Language (ESL) and English up to and including Leaving Certificate standardâ€.Despite her objections, she was timetabled exclusively for ESL classes in school year 2006/2007 and submitted that this timetabling was directly attributable to her invoking Section 9, thereby penalising her contrary to Section 13 of the Act.
The Respondent’s case
Counsel for the Respondent, Ms. Marguerite Bolger, B.L. denied that the College had discriminated against the Complainant under the terms of the Act and denied all allegations of breaches of the Act.
She contended that it was entirely untrue that the Complainant was allocated exclusively ESL hours whether in the school year 2006/2007 or at all. Whilst ESL hours always made up a substantial portion of her timetable; she has always been allocated other mainstream teaching hours.
| School Year | | English | Geography | ESL |
| 2001 - 2002 | | 12.25 hours | 2 hours | 7 hours |
| 2002 - 2003 | | 6.15 hours | 2.05 hours | 9.40 hours |
| 2003 - 2004 | | 7.30 hours | 2.05 hours | 12.25 hours |
| 2004 - 2005 | | 9 hours | ----------- | 12.25 hours |
| 2005 - 2006 | | 6.55 hours | ----------- | 14.20 hours |
| 2006 - 2007 | | 6.50 hours | ----------- | 14.40 hours |
| 2007 - 2008 | | 8.10 hours | ----------- | 12.35 hours |
Ms. Bolger stated that the ESL needs of the school had been allocated to three teachers in total including the Complainant and 2 other teachers who also held a TEFL qualification.
She stated that the post to which the Complainant was appointed had arisen from an initial allocation to the school by the Department of Education and Science of additional teaching hours to cater for non-national students who has significant (English) language deficit and stated that at all time she was aware of this. Therefore, during extensive consultation and correspondence over the years it had always been explained that it was not possible to accommodate her wish to reduce her ESL hours. In particular Ms. Bolger referred to correspondence from the Department of Education and Science dated 27th June 2003, confirming that the allocation of her post must not be used for any other purpose other than provision for non-national pupils.
A CID was furnished to her in February 2006. Any delay in the allocation of this contract was due entirely to the discussions, which were taking place at the beginning of 2005/2006 school year between the Rights Commissioner Service, the Department of Education and Science, the Teachers Union and the management body. As soon as these were completed she was offered a CID on the same terms as the fixed term contracts, which the CID replaced.
Counsel for the Respondent told the Court that due to the nature of the Department’s funding and her TEFL qualifications and experience she was specifically employed to teach English to non-nationals with language deficits. She said that the Complainant could have been scheduled for all ESL hours however, in order to accommodate her she was timetabled to teach curriculum English and although it was not one of her qualification subjects, she was required to teach Geography.
The Respondent furnished evidence to the Court of those teachers who have taught ESL and English at the College between 2001 and 2007. This data showed that there were two teachers (including the Complainant) appointed to teach ESL as part of their contract. There were three teachers appointed for other purposes but who were allocated ESL hours; one teacher had 6 periods of ESL in 2001/2002, a second with 6 periods in 2003/2004, 13 in 2004/2005, 9 in 2005/2006, 3 in 2006/2007 and the third was timetabled for 3 periods of ESL in 2003/2004.
The freedom of the Principal to allocate classes/subjects.
The Rights Commissioner in his decision required the Respondent “to confirm the content of the hours allocated to Ms. Russell in comparison with other teachers and by agreement with herself.†Counsel submitted that this decision was contrary to any obligation that could be imposed on the Respondent by virtue of the Act and furthermore, it was inconsistent with the terms of the Education Act, 1998. There is a long-standing and accepted principle within the education sector that it is the prerogative and responsibility of the Principal to allocate classes and subjects to individual teachers having regard to the needs of the school and the needs of the pupils and the qualifications and experience of individual teachers. Counsel citedLoscher v Mount Temple Comprehensive School[1994] ELR 84 [1996] ELR 98 where the Circuit Court upheld the prerogative of the Principal to construct the timetable without being bound by the wishes or requirements of an individual teacher even where doing so might have preserved their employment.
The Respondent also relied on the decision of Scott J. in the UK case ofSim v Rotherham Counsel[1987] 1 Ch.216 where the Court found as follows:
- “All schools need a framework of administrative rules to regulate their orderly conduct. An example par excellence is the school timetable. No school could operate without one. Schools like all institutions, require some sort of administrative hierarchy. In the case of schools, the administrative head is the head teacher. He or she is responsible to the Education Authority for the proper conduct of the school. He or she has the power and duty within the school to give administrative directions for the proper running of the school. The school timetable derives its authority from the position of the head teacher. It is, in my view a professional obligation of each teacher to co-operate in running the school during school hours in accordance with the timetable and other administrative regulations or directions from time to time made or givenâ€.
The Respondent further submitted that pursuant to the Education Act, 1998 as a matter of law, the Principal has sole responsibility to organise the school timetable and relied on the following provisions of the Act:
- Section 22(2)(d) which states that teachers shall “…subject to the terms of any applicable collective agreement and their contract of employment carry out those duties that are assigned to them by or at the direction of the Principal…â€
Section 23(2)(a) which provides that the Principal shall“be responsible for the day to day management of the school including guidance and direction of the teachers…â€
Section 23(3) which provides that“wherever practicable, the Principal shall, in exercising his or her functions under this Section consult with teachers and other staff of the schoolâ€.
The Evidence
The Complainant
The Complainant gave evidence in relation to the complaints she made under the Act. She told the Court that at her interview for the post in August 2001 she was never informed that she was being recruited to teach ESL classes, she understood that the job was to fill the place of a Temporary Whole Time teaching position teaching English and Geography. She was offered the position verbally, no written contract was issued. She understood that this post could eventually lead to employment in a permanent whole time post. During her first year she was timetabled to teach English and Geography and only 7 hours of ESL.
On 27th May 2002, she had a meeting with the Principal, Mr. Meany regarding a second contract with the College. He explained to her that the Temporary Whole Time teaching position was no longer available and consequently she accepted an EPT (Eligible Part Time) post. She understood that this post would mean that she was no longer eligible for a permanent post if it arose. She continued on this type of contact for the next few years. During July 2005, at a meeting with Mr. Meany she expressed her dissatisfaction with the allocation of ESL hours, due to the stress involved in teaching English to non-nationals.
By letter dated 1st August 2005, she was informed that it was not possible to convert her current contract into a CID because her current post was directly dependent on the number of non-national students with a significant language deficit. She was therefore, offered a fixed term contract to cover the period 1st September 2005 to 31st August 2006.
At a meeting on 5th October 2005, between Mr. Meany, herself and her Union representative, the Principal indicated that there was a possibility she would be offered a CID. On 10th January 2006 she received a letter from the Principal informing her of a delay in the issuing of the CID due to an awaited circular from the Department.
The Complainant held the view that contrary to the Principal’s contention that he had the right to use his discretion in organising the timetable, she submitted that when she was timetabled exclusively to teach ESL hours for the school year 2006/2007, this was penalisation by the Respondent.
The Respondent
Mr. Meany, the Principal in his evidence stated that when he needed to fill a position at short notice in September 2001, he contacted an agency and was given the Complainant’s curriculum vitae. He was interested in the Complainant’s application as she had TEFL qualifications and experience, as this was essential for the position on offer. He told the Court that the matter of “English as a Foreign Language†was central to their discussions at the interview and it was the reason he decided to offer her the position. He said that he consistently told her that the hours he could offer her were dependent on the Department’s allocation of hours for special English for overseas students.
He said that over the years she had raised objections to the number of timetabled ESL hours, however, he had explained to her that as the number of such students increased each year, she was essential, as she had been specifically employed for that reason. He said that if the number of such students disappeared then her role would also disappear.
Mr. Meany told the Court that at all times she was timetabled for a minimum of 2 mainstream Leaving Cert (non-ESL) English classes. He referred to Ms. D. a teacher, quoted by the Complainant as one of the comparable permanent employees with TEFL qualifications but with less ESL hours. Mr. Meany explained that as Ms. D. was an Irish teacher and Irish was normally timetabled at the same time as ESL (as ESL students do not studying Irish) then there was less opportunity to timetable her for ESL hours.
Mr. Meany explained, that as Principal, he had responsibility for drawing up the timetable each year; it was a major part of his work. He explained that he made every effort to accommodate the needs of all his staff but that it was not always possible, “it would become inoperable if I had to get agreement from all teachersâ€.He said that he had had a number of meetings with the Complainant and her Union representative and assured them that Ms. Russell would continue to teach mainstream English, however, it was essential to timetable her for ESL, as she had been recruited for that purpose in the first place.
Mr. Meany explained that he had communicated with Ms. Russell on a number of occasions to explain the delay in issuing her with a CID. He said that the College was in the process of trying to resolve the issue and offered her a contract on the same terms as her fixed term contract.
He denied an allegation by the Complainant that ESL was not a recognised Department of Education and Science subject.
He told the Court that neither the Complainant nor her Union Representative ever raised the problem of her ESL teaching hours in the context of her fixed term status.
The Union Representative
Ms. Collins, ASTI gave evidence that early in 2005 the Complainant raised her difficulties with the Union regarding the number of ESL hours timetabled and referred to her forthcoming entitlement to a CID in September.
Ms. Collins told the Court that in her dealings with the College on behalf of the Complainant, she did not refer to her status as a Fixed Term employee, other than with reference to her entitlement to CID. She said that the issues were not raised separately, however, she was raising them as “dovetail†issues.
She explained that the discussions ongoing in 2005 with the various bodies in the sector, regarding CID’s was designed to alleviate pressure on the Rights Commissioner Service by providing greater clarity surrounding CID’s, consequent on the introduction of the Act.
Findings of the Court
Section 6
Allegation of less favourable treatment than comparable permanent employees
The Court notes that in the complaints made to the Respondent, neither the Complainant nor the ASTI linked her allocation of ESL hours with her status as a fixed term worker.
Her contract dated 3rd June 2002, states
- “In the review of the year, we noted that you had been appointed on a one year contract late in August last year when the late resignation of one of the TWT staff, plus the late provision by DES of hours for special English for our overseas students, had resulted in some late appointments to the College. ….the best I could therefore expect to offer you for the year ahead would be first option on a one year contract involving a number of (as yet unspecified) hours of English (both mainstream and TEFL).â€
At the meeting in July 2005 she told the Respondent that she found the teaching of ESL “very stressfulâ€. However, the Principal replied stating that the reason that her post exists at all was to provide language support for non-national students who require it and that that was the basis on which the College was funded for her position in the school.
The Court accepts that the Principal had a duty to roster teachers in the most efficient way possible to complete the timetable and accepts that Ms. Russell’s contract was dependent on the presence of an adequate number of non-nationals. In that context the Respondent her taken her concerns on board in whatever way it could. However, the Court is satisfied that she was also timetabled for mainstream English classes, to teach students who were preparing for Leaving Cert English. The Court accepts the principles set down inLoscherandSimsand accepts that an obligation to seek agreement from staff when constructing the school timetable would pose extreme difficulties for a Principal of a School, which could render the task unworkable. In this case, the Court is satisfied that when account is taken of her contract of employment, Mr. Meany acted in abona fidemanner.
Section 6 of the Act provides, in effect, that fixed-term employees shall not be treated less favourably than comparable permanent employees in respect of conditions of employment. All teachers are expected to teach the subjects to which they were contracted to teach or as assigned by the Principal. The Complainant is seeking to be relieved of that responsibility, therefore the Court is of the view that she is seeking to be treated more favourably than comparable permanent teachers. The Act was designed to ensure that fixed term workers are not treated less favourably than comparable permanent employees; therefore, what the Complainant is seeking is the antithesis of the Act.
Consequently, the Court cannot finds grounds to find in favour of her contention that the Respondent was in breach of Section 6 of the Act.
Entitlement to contract of indefinite duration pursuant to Section 9 of the Act
There was no dispute between the parties that the Complainant became entitled to a contract of indefinite duration pursuant to Section 9 of the Act on 1st September 2005. The Respondent accepted that there was a delay in the issuing of the CID, however it stated that the renewal of the Complainant’s fixed term contract on 1st September 2005 was justified by Section 9(4) of the Act, which states,
- 4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal
In the interim, the College issued her with a fixed term contract and stated that there were “objective grounds†as provided for under Section 9(3) for so doing, as provided for under Section 9(4).
The objective grounds which may be relied upon to justify furnishing an employee with a further fixed-term contract in circumstances in which it would otherwise be forbidden are set out in Section 7(1) which provides as follows: -
- “A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a fixed-term employee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of a fixed-term employee's contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purposeâ€.
This is a restatement of the three tier test for objective justification in indirect gender discrimination cases formulated by the ECJ in Case 170/84Bilka-Kaulhaus GmbH v Karin Weber von Hartz[1986] ECR 1607, which is also to be found at Section 22(1)(a) of the Employment Equality Acts 1998 and 2004. The various elements of the test were analysed in detail by this Court inInoue v NBK Designs Ltd[2003] 14 ELR 98. This test requires that the court be satisfied that the reasons relied upon
(a) correspond to a legitimate objective of the employer
(b) are appropriate with a view to achieving the objective pursued, and
By letter dated 1st August 2005 to the Complainant, the Principal Mr. Meany stated:
- “I am to inform you that it has not been possible to convert your current contract into a contract of continuous employment because your current post is directly dependent on the number of non-national students with a significant language deficit. ….the DES has made a provisional allocation of 22 hours per week of language support for the coming year….. Based on this provisional figure, I would therefore ask you to sign the attached fixed-term contract which covers the period from 1st September 2005 to 31st August 2006.â€
The letter makes no reference to the delay experienced due to the discussions ongoing. While the Complainant’s Union representative accepted that there was such a delay at the pertinent time, there is no evidence to show that the Complainant was made aware of this delay and the only evidence shows that she was presented with a fixed term contract for another year in September 2005 on the basis of the above.
The Court does not accept that there were objective reasons for the renewal of the fixed term contract. The letter of 1st August 2005 stated, in the final paragraph:
- “Finally, if there were to be very few or no students who qualify for this support for the 2006/2007 school year, this contract would be terminated and would not therefore be renewed.â€
Therefore, the Court finds that the renewal of her fixed term contract on 1st September 2005 was in contravention of the Act and by operation of Section 9(3) is deemed to be a contract of indefinite duration from that date. The terms and conditions of which must be aligned with those of a comparable permanent employee in accordance with Section 6.
Section 13
Complaint of Penalisation
Counsel for the Complainant told the Court that she had issued proceedings under the Act in December 2005 and in February 2006 the Respondent offered her a CID which referred only to the her teaching ESL and mainstream English, when she had continually requested not to be timetabled for ESL hours or reduced ESL hours. Despite this the contract offered to her specified ESL as one of her two subjects and furthermore she contended that she was timetabled exclusively or ESL hours for 2006/2007. She maintained that this timetabling was directly related to her seeking a CID.
Section 13(1) of the Act
In his Decision the Rights Commissioner makes no finding under 13 of the Act, this Section provides as follows:
(1) 13.—(1) An employer shall not penalise an employee—
- 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,
for having in good faith opposed by lawful means an act which is unlawful under this Act,
for giving 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
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).
(2) For the purposes of this Section, an employee is penalised if he or she—
is dismissed or suffers any unfavourable change in his or her conditions of employment or any unfair treatment (including selection for redundancy), or
is the subject of any other action prejudicial to his or her employment.
The Court notes that the timetable for 2006/2007 indicated that the Complainant was rostered for 6.50 hours of mainstream English and 14.40 hours of ESL, i.e. 10 periods of English and 21 periods of ESL. She had been timetabled in accordance with her contracts of employment for these subjects since first employed by the Respondent and over the years while the number of hours for each subject has varied, the Court does not consider the timetabling for the school year 2006/2007 to be so substantially different as to establish a claim of penalisation.
The Complainant asserted that the mainstream English classes assigned were for the teaching of the curriculum English to non – nationals and therefore came within the same bracket as ESL. The Court does not accept this as a valid assertion; the Respondent gave details on the composition of students in these classes (Class no: 304, 504, 604). It told the Court that these classes included some students who were studying in preparation for state examinations, and the classes covered the curriculum for the Junior and Leaving Cert. The Court notes that the Complainant accepted this explanation at the hearing.
Therefore, the Court is not satisfied that the Complainant has established aprima faciecase that she was penalised and consequently does not uphold her claim under Section 13 of the Act.
Summary
For all of the reasons set out herein the Court has reached the following conclusions:
1.The Complainant has not been treated less favourably than comparable permanent teachers in being assigned to teach ESL hours, for the purpose of Section 6 of the Act.
2.The Complainant as a fixed-term employee on successive fixed terms contracts for more than 4 years was entitled to a contract of indefinite duration on 1st September 2005, on terms and conditions not less favourable than those applicable to a comparable permanent employee.
Redress
The Court has considered the level of detriment the Complainant suffered as a result of the Respondent’s contravention under Section 9 of the Act. At the pertinent time the Complainant was refused a CID, she was placed on another fixed term contract and was warned of a possible termination of her employment the following year. This lead to a certainty amount of distress and feelings of insecurity. The Court notes the Union’s letter to the Respondent, dated 6th September 2005, stated that“it is worrying that the vast majority of her hours are dedicated to teaching a student cohort whose presence in the school is uncertain from year to yearâ€.The Court awards the sum of €3,000 as compensation for this contravention under Section 9.
Determination
The Respondent’s appeal is partially allowed. The Decision of the Rights Commissioner is varied; the Court does not uphold the Rights Commissioner's decision requiring the Respondent"to confirm the content of the hours allocated to Ms. Russell in comparison with other teachers and by agreement with herself.â€
The Court determines that the appropriate redress for the Respondent's contravention of Section 9 of the Act is an award of compensation and the Respondent is directed to pay the Complainant compensation in the amount of €3,000.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
26th February, 2008______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.