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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Minister for Education & Science -v- The Labour Court & ors [2015] IEHC 429 (03 July 2015)
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Neutral Citation [2015] IEHC 429 THE HIGH COURT [Record No. 2012/685 JR] JUDICIAL REVIEW BETWEEN/ THE MINISTER FOR EDUCATION AND SCIENCE APPLICANT -and-
THE LABOUR COURT RESPONDENT -and-
ANNE BOYLE AND THE COMMITTEE OF MANAGEMENT OF HILLSIDE PARK PRE-SCHOOL NOTICE PARTIES JUDGMENT of Ms. Justice Iseult O'Malley delivered the 3rd day of July, 2015 Introduction 2. The Minister claims that the Labour Court exceeded its jurisdiction and erred in law, in that, according to the Minister,
2. the Labour Court erred in following a High Court judgment - that of Dunne J. in Catholic University School v Dooley [2010] IEHC 496 - while failing to follow the authority of the Supreme Court decision in O’Keeffe v Hickey & Ors [2008] IESC 72; and 3. the Labour Court acted unreasonably, disproportionately and ultra vires in directing the Minister to admit Ms Boyle to a statutory pension scheme, the requirements of which she did not fulfil. 4. In the course of the hearing an issue also arose as to whether the Labour Court had in its ruling been conscious of the terms of the EU Directive transposed by the Act, and, if so, whether it had jurisdiction to construe the Act in accordance with the Directive if that entailed reading the Act contra legem. However, for the reasons set out in this judgment, I do not find it necessary to deal with that argument. Background facts 6. On the 16th March, 2009, Ms. Boyle made a complaint to the Rights Commissioner service pursuant to the provisions of the Protection of Employees (Part-Time Work) Act, 2001, claiming that she was treated less favourably than full-time workers by not being admitted to the National Teachers Superannuation Scheme. The complaint named both the Chair of the management committee and the Department of Education and Science (“the Department”) as her employer. In making her case, she chose as her comparator a National School teacher who worked in an Early Start unit in a primary school. 7. It is relevant to note that the preschool closed before the complaint was dealt with and that Ms. Boyle was paid redundancy by the Minister. 8. Ms. Boyle was represented before the Rights Commissioner by the Irish National Teachers Organisation. The Department was represented by two officials, while the chairperson of the management committee, Mr. Joe Neylon, appeared in person. 9. After a hearing in January, 2011 the Rights Commissioner upheld the arguments made on behalf of the Department of Education and Science, concluding that it was neither the employer of Ms. Boyle within the meaning of s.3(1) of the Act nor an associate employer within the meaning of s.7(5). No finding was made in respect of the management committee and it is not clear what position was taken by that body in relation to the claim. 10. Ms. Boyle appealed this decision to the Labour Court. Statutory context - The Protection of Employees (Part Time Work) Act, 2001 12. Section 9 of the Act lays down the general principle that a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee. This general principle does not apply where such treatment can be justified on objective grounds. 13. A part-time employee is an employee whose normal hours of work are less than the normal hours of work of an employee who is a comparable employee in relation to him or her. A full-time employee is an employee who is not a part-time employee. 14. “Contract of employment” is defined in s. 3(1) as meaning
(b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act, 1971, and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract), whether the contract is express or implied and, if express, whether it is oral or in writing.”
(a) the employee and the relevant part-time employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (3) is satisfied in respect of those employees, (b) in case paragraph (a) does not apply (including a case where the relevant part-time employee is the sole employee of the employer), the employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant part-time employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable employee in relation to the relevant part-time employee, or (c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant part-time employee is employed in and one of the conditions referred to in subsection (3) is satisfied in respect of those employees, and references in this Part to a comparable full-time employee in relation to a part-time employee shall be construed accordingly. (3) The following are the conditions mentioned in subsection (2) - (a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work, (b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and (c) the work performed by the relevant part-time employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.
not exceeding 2 years remuneration. Claims must be initiated within six months of the date of the alleged contravention, or of the termination of employment, whichever is the earlier. The evidence and submissions before the Labour Court 21. By this time the preschool had closed. Educational policy in relation to traveller children had changed, with the emphasis now being on inclusivity, and the Department of Education did not intend to fund preschools for such children (although it might have been open to the committee to seek funding from other State sources). The management committee did not participate in the appeal. It appears that Mr. Neylon had passed away and the committee had disbanded. 22. The following summary of the evidence and submissions deals only with the aspects relevant to the issues before this court, and not, for example, with the details of the work done by Ms. Boyle and her chosen comparator. History of employment 23. The Labour Court was informed that the preschool had been established in 1981 and Ms. Boyle had been employed there since 1989. Originally it was based in two rooms in the local community centre. When that was demolished it relocated to a different premises. It is noteworthy that all correspondence between the Department and the management committee was sent care of Ms. Boyle’s home address. 24. It appears from submissions filed by the Department that it was policy to grant aid to traveller preschools to a maximum of 98% of a national school teacher’s salary for a maximum of three hours per day, five days per week for the duration of a normal school year. It also funded 98% of the cost of school transport where that was provided. 25. Ms. Boyle was a qualified secondary teacher, rather than a primary teacher. It was stated that she was employed by the board of management. The Department paid 98% of her salary by way of grant to the board. The grant, which was paid into a bank account in the name of the management committee, included the amount payable by way of employer’s PRSI. It was accompanied by details of the calculations relevant to Ms. Boyle’s pay. 26. It was noted that all part-time teachers (learning support and resource teachers) in primary schools had been paid by the grant system until 2009, and that part-time teachers in special schools had been paid under the same system until January, 2011. The change in relation to these categories came about on foot of a circular (Primary Circular 0088/2008) issued by the Department, which stated that the grant system was to be altered, on a phased basis, to direct payment to the teacher. The circular made it clear that the intention of the change was to reduce the administrative burden on schools and also help to
28. The terms and conditions of Ms. Boyle’s employment, including her salary, were set by the Department in relation to issues such as sick leave, holidays, maternity leave, compassionate leave and entitlement to a qualification allowance. 29. Until 1992, Ms. Boyle was paid a part-time hourly rate. In that year the Department introduced a scheme establishing “Pro-Rata Pay and Conditions for Eligible Part-Time Teachers in Special Schools and other Institutions.” This scheme was open only to part-time teachers who were wholly or mainly dependent for their livelihood on their earnings from part-time teaching, and whose employment history met certain criteria. The “pro-rata” aspect was by reference to the earnings of full-time primary school teachers. 30. “Eligible part-time teachers” were those who were either fully qualified teachers, or part-time teachers who, though not fully qualified, had been sanctioned in their posts by the Department and who had at least one year’s service prior to the 1st September, 1990. 31. Of note, the terms of the scheme specifically stated that it did not provide for any amendments to the current regulations in relation to superannuation. It was also stated that
34. In 1995, Ms. Boyle was conferred with a Master’s degree in education. She applied to the Department for an additional qualification allowance in her salary on foot of this. It was explained to her that she already had two qualification allowances and it was not possible to have three - however, the Master’s was substituted for one of the existing two. This entitled her to an increase in pay which was paid to her with effect from the date of conferral of the degree. 35. In 2000, the Department issued a circular (24/00) concerned with the shortage of qualified primary school teachers. The effect of the circular was to allow secondary teachers teaching in primary schools, in a temporary or substitute capacity, to be paid at the rate applicable to qualified national teachers. Ms. Boyle applied to the Department to be put on the scale and was placed on the second point. Thereafter the incremental scale was applied to her. It remained the case, however, that the Department’s grant to the preschool was capped at 98% of what would have been payable to her had she been employed in a primary school. 36. It appears to be common case that the rates paid to teachers, including those in Ms. Boyle’s position, were fixed pursuant to a collective agreement entered into under the auspices of the Teaching Council (a statutory body). With the introduction of benchmarking, the value of pension entitlements paid to national school teachers were taken into consideration in fixing discounted rates of remuneration for them. 37. After the coming into force of the Financial Emergency Measures in the Public Interest (No.2) Act, 2009, Ms. Boyle’s salary was reduced on the same basis as that of national school teachers. 38. In November 2010, the Department sent a circular (0070/2010) to the management of all primary, secondary, community and comprehensive schools and to VECs. This dealt with the question whether certain staff, who had not been subject to the pension levy introduced in earlier legislation, were subject to the pay reductions under FEMPI. The issue arose because the legislation in question defined “public servant” in different ways. The circular explained that
This applies regardless of the source of the money used to fund their salary, notwithstanding the fact that the Minister does not determine their terms and conditions of employment, and irrespective of whether or not they are eligible for, or members of, a public service pension scheme.”
… Teachers employed in Traveller pre-schools …. It is important to point out that the fact that affected staff employed by recognised schools and VECs come within the definition of “public servant” solely for the purposes of the Act does not alter their employment status in any other respect.” Submissions to the Labour Court 41. The submissions on behalf of Ms. Boyle argued that her appointment by the management committee had been subject to sanction by the Department; that the pre-school was subject to inspection and indeed had been evaluated by the Department Inspectorate in 2000/2001; that the Department’s Visiting Teacher for Travellers traditionally sat on the management committee; that a capitation fee was paid in respect of children enrolled in the school; that the Department determined the number of days and hours in the school year, and that it provided in-house training for Ms. Boyle in the same manner as for national school teachers. The management committee had no control over her remuneration, since that was fixed by reference to the collective agreement entered into by the Department under the tripartite structure of the Teaching Council. The additional allowances paid to Ms. Boyle in respect of her qualifications were also within the control of the Department. 42. The appointment of Ms. Boyle is said to have been “sanctioned” by the Minister in that her eligibility for the EPT scheme depended on her being either a qualified primary teacher (which she was not), or sanctioned by the Department. 43. It was pointed out that Ms. Boyle’s salary and allowances had been reduced in accordance with the provisions of the Financial Emergency Measures in the Public Interest (No.2) Act, 2009. 44. It was also pointed out that, when the preschool was closing, the Department had stated that it would pay statutory redundancy to Ms. Boyle. 45. In legal submissions, it was argued that the Minister must be deemed, under the provisions of the Act, to be the employer because he was the person liable to pay Ms. Boyle’s wages. Reliance was placed upon the High Court decision in Catholic University School v. Dooley and on the Employment Appeals Tribunal decision, cited in Dooley, in Sullivan v. Department of Education [1998] E.L.R. 217. The judgment of the Supreme Court in O’Keeffe v Hickey was distinguished, on the argument that it dealt only with the issue of vicarious liability. 46. In Dooley, which is considered in detail below, Dunne J. held that a part-time teacher whose salary was privately funded could not choose, when nominating a comparator under the Act, a full-time teacher whose salary was funded by the State. She said for the purposes of the Act a State funded teacher must be deemed to be an employee of the Minister. 47. The comparator chosen by Ms. Boyle was a full-time primary school teacher working in an Early Start project, or unit, in a primary school. Such projects were designed to assist disadvantaged children at preschool level. Teachers working in pre-schools in this programme were eligible for the superannuation scheme. 48. On the issue of redress, it was submitted that the Department had been in breach of the Act since the date of its enactment. It was argued that the cap on compensation available under the Act was insufficient to amount to an effective deterrent and as such was a breach of the Directive. It should therefore be disregarded. Ms. Boyle also sought an order deeming her to have been a member of the superannuation scheme with effect from the date of commencement in 1992 of her employment as an eligible part-time teacher. Submissions on behalf of the Minister 49. The Minister submitted as a preliminary point that Ms. Boyle’s complaint was not well founded, because neither she nor her chosen comparator were his employees within the meaning of the Act. She had entered into a contract with, or worked under a contract of employment for, the management committee. There was no contract of employment between herself and the Minister. 50. It was submitted that the only exception to this principle was for the purposes of the Payment of Wages Act, 1991, in relation to teachers “on the payroll”. Under this Act, “contract of employment” is defined in s. 1(1) as follows:
(b) any other contract whereby an individual agrees with another person to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract) whose status be virtue of the contract is not that of a client or customer of any profession or business undertaking carried on by the individual, and the person who is liable to pay the wages of the individual in respect of the work or service shall be deemed for the purposes of this Act to be the employer, whether the contract is express or implied and if express, whether it is oral or in writing.” 52. With regard to the extended part of the statutory definition dealing with employment agencies, it was submitted that this was an exceptional example of the Oireachtas adopting an artificial interpretation. Having specifically provided for this unusual circumstance, it was to be presumed that no other special circumstance was contemplated. 53. Reliance was placed upon the judgments in Tobin v Cashell (Unrep., Kearns J., 21st March 2000), O’Keeffe v Hickey [2009] 2 IR 302, and Crowley v Minister for Education & Ors. [1980] IR 102. 54. While it was accepted that the specific issue at stake in O’Keeffe was vicarious liability, it was submitted that the judgments of the Supreme Court contained a broader statement of principle and that in large measure the decision rested on a finding that the Minister was not the employer of the teacher in question. It was submitted that:
56. It was asserted that the pre-school was controlled and operated by the management committee and that the Minister had no involvement whatsoever with either the running of the school or Ms. Boyle’s employment. A grant was paid to the committee, a private, non-State entity which engaged staff and dealt with “all employment matters” affecting those staff. In the circumstances it was said that the department had “substantially” less control over the management committee than it would over the board of management of a recognised school. 57. Further, it was submitted that there was no discrimination as between full-time and part-time teachers in the operation of the superannuation scheme, since the scheme was available to both full-time and part-time national school teachers, including substitute teachers and job-sharers. Ms. Boyle’s ineligibility for access to the scheme arose from the fact that she was not a national school teacher. 58. Reference was made to the legislation governing the scheme. Section 2 of the Teachers Superannuation Act, 1928 permits the Minister, with the consent of the Minister for Finance, to prepare a pension scheme “in relation to any particular class or classes of teachers”. In relation to primary school teachers the principal scheme is provided for in the National School Teachers’ Superannuation Scheme, 1934 (S.I. 23/1934), which defines “salary” as
Determination of the Labour Court 61. The Court identified the issues arising as being, firstly, whether the Minister was Ms. Boyle’s employer for the purposes of the Act and, secondly, whether the nominated comparator was a comparable full-time employee within the meaning of the Act. The second question turned on whether or not the chosen comparator was an appropriate comparator for the purposes of the Act, and whether she and Ms. Boyle were engaged in the same work or work of equal value. 62. The facts of the case were summarised much as set out in paragraphs 5-9 above. The Labour Court found that the management of the school was vested in the management committee and that Ms Boyle was under the day-to-day control of that body in the discharge of her duties. However, it also found that it was clear that the committee exercised no control over the remuneration and other conditions attaching to her employment, and that these matters were “exclusively controlled” by the Minister. 63. The Labour Court then went on to note the statutory definitions of the terms “employer” and “employee” already referred to, before considering the applicable law as found by the Superior Courts in Tobin v Cashell (Unrep., Kearns J. 21st March, 2000), Crowley v Minister for Education, O’Keeffe v Hickey and Catholic University School v Dooley. 64. In rejecting the argument advanced by the Minister that Dooley should not be applied to the case, the Labour Court found, firstly, that the factual differences urged upon it - that in this case, the Minister paid only 98% of the salary, and that it was it was in the first instance paid to the committee - did not undermine the application of the general principle enunciated by Dunne J. The Court went on:
…It seems to the Court that the ratio decidendi in Dooley is discernible from the passages of the judgment quoted above. It appears to be that in a tripartite employment relationship, where the worker is engaged by and works under the direction and control of one party, and his or her terms and conditions of employment are determined solely by another party and funded by that party, the party who determines and funds the wages is to be regarded as the employer for the purposes of the Act of 2001. As in Dooley, [the Minister] determined the terms and conditions of [Ms. Boyle’s employment and [the committee] had no hand, act or part in determining her pay or her conditions of employment. [Ms. Boyle’s] salary was set, adjusted and reduced on the directions of [the Minister] without any input by [the committee]. Moreover, as in the case of Sullivan v Department of Education [1998] ELR 217, which was quoted with approval by Ms Justice Dunne, the relief that [Ms. Boyle] seeks, namely inclusion in the superannuation scheme, could only be obtained against [the Minister] and there could be no reality in seeking to pursue that claim against [the committee].”
67. Under the heading “Redress” it is noted by the Labour Court that one of the hearing dates was specifically convened for the purpose of taking submissions on this topic. Ms. Boyle sought an order directing the Minister to enter her into the National School Teachers Superannuation Scheme with effect from 1992, the year in which she became an “eligible part-time teacher”. The Court considered that this was not possible, for two reasons. The first was that the Act under which the claim was brought was not enacted until 2001, and plainly Ms. Boyle could not have accrued any entitlement under the legislation prior to its enactment. Secondly, no complaint could be entertained unless made within six months from the date of the alleged contravention of the Act. 68. The Labour Court therefore took the view that it was limited to making an order directing the Minister to enter Ms. Boyle into the National Teachers Superannuation Scheme with effect from the 21st September, 2008, being six months before the date upon which she initiated her claim. The Court said that it also believed that it was appropriate to make an award of compensation “for the general effects of the discrimination suffered by the Claimant”. It considered the sum of €10,000 to be just and equitable. The judicial review proceedings
b. directing the Minister to enter Ms. Boyle in the National Teachers’ Superannuation Scheme, when she did not satisfy the statutory requirements for it; and c. making a finding as to general unspecified effects of discrimination suffered by Ms. Boyle, in the absence of any claim or any evidence of loss, and awarding compensation. 71. The statement of opposition, in summary, denies that the Labour Court fell into the errors alleged, or that its determination is amenable to judicial review. The proceedings are asserted to be an abuse of the process because of the existence of the statutory appeal on a point of law. 72. It is admitted that the principal claim made by Ms. Boyle in the Labour Court was that both she and her chosen comparator were both employees of the Minister. However, it was open to that Court to find in her favour on alternative bases under s. 7(2)(a), (b) or (c) of the Act. The position of the Management Committee 74. Ms. Boyle has averred that by the time the matter reached the Labour Court there was no functioning management committee. However, she says that at the Rights Commissioner hearing Mr. Neylon had confirmed that the committee had no say or discretion in relation to her terms and conditions. 75. For the purpose of service of the papers relating to this judicial review application on the committee, it appears that a member of An Garda Síochána was instructed to go to a particular address. This address was in fact the home address of Ms. Boyle. The garda did not find anyone present. This method of service appears to have been adopted because the Minister did not know, and said that he had no way of finding out, the identities of the members of the Committee. Propriety of judicial review proceedings 77. The decision to pursue this avenue, as well as lodging an appeal on a point of law under the Act, is explained in the grounding affidavit sworn on behalf of the Minister by Mr. Dalton Tattan, a Principal Officer, as follows:
Since the appeal to the High Court on a point of law may not be taken further to the Supreme Court, I say and believe and am advised by counsel that there is a risk that such an important issue will fall to be determined before the High Court without any recourse being had (by either party) to a determination by the Supreme Court. In particular in this case, there is a risk that if the matter comes before the High Court, the High Court without addressing the substance of the issue, may adopt a similar approach to that of the Labour Court and hold that a recent High Court decision has in fact determined the issue, rightly or wrongly, and accordingly the substance of the matter may not be revisited.” 79. It is argued on behalf of Ms. Boyle that the Minister is engaged in an abuse of the court’s process and attempting to bypass the statutory scheme established by the Act. 80. Guidance on this issue is to be found in the judgment of Clarke J. in EMI Records (Ireland) Limited v The Data Protection Commissioner [2013] IESC 34. One of the issues in the case was whether the applicant record companies were entitled to take judicial review proceedings in circumstances where they had already applied to be joined in a statutory appeal by the notice party. Clarke J., having referred to the well-known passage in The State (Abenglen Properties Ltd) v. Dublin Corporation [1981] ILRM 54 regarding alternative remedies, noted that the availability of an adequate alternative meant that the court was likely to exercise its discretion against the applicant. He also quoted with approval from the judgment of Hogan J. in Koczan v Financial Services Ombudsman [2010] IEHC 407, and concluded as follows:
However, there will be cases, exceptional to the general rule, where the justice of the case will not be met by confining a person to the statutory appeal and excluding judicial review.” 82. It is clear that if the general rule were to be applied, the court should confine the Minister to the statutory appeal process. 83. I propose, in this instance, to deal with the substantive merits of the judicial review proceedings notwithstanding the fact that there is in being an appeal under the statute. 84. I accept the legitimacy of the rationale for taking the judicial review proceedings as averred to by Mr. Tattan. The issue in the case goes beyond a technical dispute as to the interpretation of the Act. It is a serious matter, affecting a large number of people, with its roots in the unique Constitutional arrangements for education in this State. It seems to me that it is not necessarily an abuse of process in these circumstances to wish to leave open to both parties the possibility of appeal. This is particularly so when the matter was properly dealt with in the grounding affidavit and brought to the attention of the leave judge. Submissions in the judicial review proceedings 86. The Minister relies on O’Keeffe v. Hickey and the line of authority supporting the proposition that a teacher is employed, not by the Minister, but by the management of the school. 87. It is submitted that the correct ratio of Dooley is that the appellants in that case, being privately-funded teachers, could not use State-funded teachers as comparators. This was because they did not have the same relationship with the school. The observations about the Minister being the employer of the State funded teachers are said to be obiter, and/or wrong, and, in any event, applicable only in respect of secondary teachers in a school which is recognised within the meaning of the Act. The pre-school in question was never a recognised school within the meaning of the Education Act, 1998. The Labour Court fell into legal error in applying those observations, instead of applying the terms of the Act and following the established authorities. 88. It is submitted that the statutory definitions of “employer” and “employee” are the only ones cognisable by the Court and that the Directive and Framework Agreement cannot be used for the purpose of interpreting the Act contra legem. 89. The Minister also submits that the Labour Court should not have awarded compensation in the absence of proof of damage. It was up to the claimant to present evidence if she felt that loss had accrued to her. This argument is put in terms of fair procedures - not that the Minister was not given an opportunity to make submissions on redress, but that there had been no evidence or submissions relevant to compensation. 90. It is also argued that the order requiring the Minister to admit Ms. Boyle to the pension scheme is contrary to law, in that she does not meet the statutory qualifications for it. 91. Mr. McDonagh submits that the Education Act preserves the employment status of teachers. 92. In answer to a query from the court as to what redress a part-time teacher would have if the Minister set different pay rates for full-time and part-time teachers. Mr. McDonagh said that the remedy would be against the board of management of the school. 93. However, he maintains that any detriment suffered by Ms. Boyle was not because she was part-time, but because she was not a national school teacher. It is suggested that she is attempting to get a benefit “never intended for her” but intended for national school teachers. She worked in a preschool, which is not primary education and which the Minister has no obligation to provide. She was paid out of a grant given to that establishment. 94. Mr. McDonagh referred to the fact that there are early learning centres run by organisations such as Barnardo’s, whose staff are provided with pension schemes. He says that it would not be of concern to the Minister if the management committee had paid Ms. Boyle more than a national school teacher’s salary. 95. On behalf of Ms. Boyle, Mr. Ward SC says that there is nothing in the statement of grounds about any differentiation between recognised schools and the preschool where Ms. Boyle taught, or about the method by which it was funded, and that these are in any event side-issues. The device by which the money was paid as a grant was just a means to provide her salary, which was that of an eligible part-time teacher. She had the same relationship with the Minister as a national school teacher. 96. It is submitted that the decision of the Labour Court was correct in law. Ms. Boyle had sought redress from the person who controlled her pay and conditions, the degree of control being illustrated by the facts of the case and the documentation put before the Labour Court on all pay-related issues up to the point where the Department accepted responsibility for the payment of redundancy entitlements. It is noted that the Minister does not suggest that she should not have the protection of the Act, arguing rather that in attempting to invoke its provisions against him she is aiming at the wrong target. However, even when the management committee was functioning, there was nothing it could have done about a pension for her. 97. On the authorities, it is submitted that O’Keeffe v Hickey is concerned with the question of vicarious liability. This arose in the historical context of the tripartite system of education in Ireland, and the conclusions of the Supreme Court in relation to the issue before it cannot be directly applied to pay-related issues. In relation to those matters, the State regulates every aspect. In any other employment area these issues are decided by an employer. 98. It is submitted that, when looking at any particular piece of legislation, the question to be asked is - who has control over this issue? In Dooley, Dunne J. concluded that for the purposes of this particular Act, State funded teachers were employees of the Minister. This could not be described as obiter, and the Labour Court was bound to apply it. The authorities
101. All of the judgments in the Supreme Court, including the dissent of Geoghegan J., accepted the contention of the State that the principal was employed by the manager of the school and not by the State. The majority held that in those circumstances, since the Minister had no direct control over the principal, the principle of vicarious liability could not avail the plaintiff. 102. On the issue of the employment contract Geoghegan J. said that it was not in dispute that a teacher in a national school was in a contractual relationship with the manager of the school.
106. It was noted that in the 19th century the “managerial system” became established in Ireland, mainly through the efforts of the Roman Catholic and Dissenting churches. The State agreed to pay for a national education system, and promulgated rules for it, but ceded the role of management and administration at the point of delivery to the Patron and the Manager of the school - in practice, to the churches. This system was already long established by 1937. 107. The judgments refer to the expert evidence of a Professor Coolahan, who described as “the key concern that had been fought for and won over the years” the right of the school manager to appoint and dismiss teachers. 108. Looking at 20th century judgments dealing with the structure of the education system, Hardiman J. cited Fox v. Higgins (1912) 46 I.L.T.R. 222 as being the first to refer to a “triangular pact” involving the National Board of Education, the school manager and the teacher. In that case, dating from 1912, a teacher who had been absent through illness was refused permission to return to work by a new manager appointed during his absence. The rules in force at the time stipulated that a new manager was obliged to reappoint teachers appointed by his predecessor. The teacher was held entitled to damages on the basis that the rules, although made by the Board, created a contract between him and the manager. 109. The judgments in O’Keeffe also refer to the following passages from McEneaney v. The Minister for Education [1941] I.R. 430, in which the managerial system was described by the then Supreme Court.
By the Rules of the Board upon a change of manager the succeeding manager was under an obligation to reappoint the existing teachers under an agreement in writing in the same terms as the agreement by which they had previously been appointed. Further, whilst under the Rules the provision of salary for the teacher was made in the form of a grant to the manager and was paid to him unless he signed a request to have it paid direct to the teacher, the entire conditions as to remuneration usually depended upon the action of the Board… 111. Kenny J. referred to this State’s historical experience as being
113. Catholic University School v Dooley involved a claim under the Act brought by part-time teachers employed in CUS. That school is a fee-paying establishment and the part-time teachers involved in the claim were paid out of privately raised funds. They sought to compare themselves to full-time teachers in the same school whose salaries were paid by the Department, for the purpose of seeking to be paid at the same rate. There was no dispute as to the fact that they were treated less favourably. The Labour Court upheld their claim and an appeal on a point of law was taken to the High Court. 114. The school relied upon paragraph (b) of the definition of an employer and argued that the claimants did not have the same employer as their chosen comparators since the school had “no hand, act or part” in the negotiations between the teachers, their union and the Department. Various distinctions between state and privately funded teachers were set out. It relied upon a decision of the Employment Appeals Tribunal in Sullivan v. The Department of Education [1998] E.L.R. 217, where the tribunal had found the Department to be a teacher’s employer for the purposes of the Payment of Wages Act, 1991. 115. The claimants relied upon the analysis of the Supreme Court in O’Keeffe in making the argument that the board of management, or the school, had to be seen as their employer for all purposes. 116. Having considered O’Keeffe, Dunne J said:
In a private school there will be a cohort of Department funded teachers and usually there will also be a cohort of privately paid teachers. The paymaster for each cohort is different. In the case of O’Keeffe v Hickey to which I have referred above, the unusual nature of the tripartite agreement was described; the Board of Management was found to be the employer of the teacher concerned in that case which involved the question of vicarious liability although the teacher was paid by the Department. There is no tripartite arrangement in the case of the claimants.”
In all of those circumstances the Tribunal does not accept that the Department is simply a ‘paying agent’ which simply pays out the money at the request of the state school concerned. In relation to the question of the hours worked for which a teacher qualifies for his or her monthly salary, the school principal has a role in certifying the hours worked. However in respect of all teachers, when it comes to the question of qualification allowances, these aspects of a teacher’s salary involve no role for the school and are something which go to the teacher’s particular qualification and are a constant.” 119. Dunne J. observed that the case of Sullivan highlighted the different and complicated employment arrangements as between Department funded teachers and privately funded teachers. She continued:
122. Hedigan J. rejected a submission on behalf of the claimant that the passage from Dooley quoted immediately above should no longer be regarded as good law, because of the intervening change in the relationship between the claimant and the Department brought about by FEMPI. He noted that her salary had been reduced, and her hours increased, by direction of the Department but held that the key rationale of Dunne J.’s decision was contained in these sentences:
125. Giving the judgment of the majority, Murnaghan J. commenced by stating that it had been recognised for more than a century that the provision of primary education was “a national obligation”. For many years this duty had been entrusted to a body corporate, created by charter, called the Commissioners of National Education in Ireland. In administering the funds granted to it by Parliament, the Board of this body devised the managerial system. 126. After the passages referred to above, (as quoted in O’Keeffe), Murnaghan J. said:
But the contract between the manager and the teacher does not comprise the entire relationship. Fox v. Higgins was an action in which a teacher sued a new manager for failure to re-appoint him in accordance with the Rule made by the Board, and Gibson J. held “that the National Board, the manager and the teacher are put together in a kind of triangular pact” and he awarded damages against the new manager who had entered into no new contract with the teacher. So far as the present case is concerned, as the manager did not own the school and was not carrying it on for his personal benefit, he is in the position of a trustee of an educational trust; but at the same time the Board, acting as an independent authority, has made published Rules by which it has made representations to both the manager and the teachers as to the way in which it would apply the funds entrusted to it by Parliament. In so far as Parliament has left to the Board a free discretion as to the application of these funds, the Board was legally bound by the representations which it had made.”
I am equally, for the reasons I have given, unable to accept the argument that the parties by their contract meant, not a salary upon definite terms and conditions, but only such salary as the Board should decide to grant from time to time." Discussion and conclusions 130. It is in the nature of a tripartite relationship that each of the three parties has a separate role to play. Much of the focus in the authorities cited has been on the relationship between the school management and the teacher, and it is clear beyond argument that the former holds responsibility for hiring, discipline and dismissal. These aspects are the ones that are likely to give rise to issues of vicarious liability, since that is a concept that is related to control of an employee’s behaviour. Questions as to the responsibility of the State for the actions of teachers have been answered in the light of this aspect of the triangular relationship. 131. It is equally clear that since long before this State came into existence, the State’s role in this country has been concerned with the funding of that very large part of the education system that is not privately financed. However, it does not, and did not in the past, simply hand over funds to schools to do with as they wish. It sets the rules according to which it pays the salaries of teachers, where they are not paid out of privately sourced funds. Salaries will not be paid by the Department unless the teachers chosen by the management have the qualifications required by the Department, and unless the allocation of posts by the Department to the school in question permits appointments to be made. The rates of pay, including allowances for qualifications, posts of responsibility and so on, are negotiated by the Department in a collective bargaining process under the auspices of a statutory body (the Teaching Council) rather than being set by the individual school management bodies negotiating with individual teachers. In other words, the Department carries out, in respect of State funded teachers, the role normally carried out by an employer with regard to payment of employees. 132. Further, the State now concedes (in contrast to the stance taken by it in the EAT in Sullivan) that, in respect of State funded teachers, it is to be considered the employer for the purposes of the Payment of Wages Act, 1991. It is of course the case that the definitions in that Act are different to those under consideration, but the definition from the Payment of Wages Act (set out at paragraph 50 above), is premised on the concept of a person who is “liable to pay the wages”. The Minister is, therefore, accepting that he is that person. This position is now confirmed by the provisions of the Education Act, 1998 as amended, s. 24 of which provides for the powers of the Minister in relation to teachers’ pay. 133. This, in my view, is one of the results of the unique tripartite arrangement in relation to education in this State. In relation to teachers whose salaries are paid by the State the role of employer is, uniquely, split. Part of it is played by the management of an individual school and part by the Department of Education. The former has the right to hire, discipline, dismiss and generally direct a teacher in the day-to-day running of the school. The Department, on the other hand, sets the rules about, and pays, the salaries. Since it thereby takes on what would normally be the rights of an employer in relation to pay, it follows, in my view, that it carries the legal duties of an employer associated with pay. It has been clear since, at least, the 1940 decision of the Supreme Court in McEneany that compliance with its own Departmental rules is one such legal obligation, and is a matter of contractual right on the part of teachers. I cannot see that compliance with rules imposed on employers by legislation in respect of pay and pay-related matters should be treated any differently. To hold otherwise would be to impose on school management bodies legal responsibility where they have no legal power. The argument that it is open to individual schools to give better salaries or pension provisions if they wish does not deal with the primary liability to pay what is lawfully due. 134. The decisions in Dooley and Browne are therefore entirely consistent with both the authorities and the factual situation of State funded teachers. 135. It has been argued that the statement by Dunne J. that the Minister must be deemed to be the employer of Department funded teachers should be regarded as obiter, and that the ratio of her decision was that those teachers had a different relationship with the school. I think that this submission is misconceived. If all the teachers in the school were to be deemed to have the same employer then, under the Act, the claimants would have had a cast-iron case. They were part-time teachers being treated less favourably than full-time teachers. The case was not contested on the basis that the school could show objective justification for the difference. 136. As a matter of fact, it seems that over the years the Department has administered its functions with a consciousness of these responsibilities. The circular issued in 2008 is a good example. It states clearly that the Department was to phase in direct payment of salaries to part-time teachers in order to ensure compliance with the very Act under consideration in this case. 137. If the Department did not act in this manner, it is difficult to imagine how the school system could function. It is not just the sheer impracticality of making individual members of boards of management legally responsible for teachers’ payment issues in State funded schools - if that were the law, and it was known to be such by members of school boards, it would seem unlikely that they would be willing to act. The situation in this regard is as the Supreme Court saw it in 1940s Ireland, when it described the proposition put forward by the Minister as “quite at variance with reality”. There is also the fact that the school boards, unlike other employers, do not have control over the salary rates paid to their employees. It is therefore difficult to see how they could be responsible for paying them. As Dunne J. said of the EAT decision in Sullivan, that case could hardly have been decided any other way, given the unlikelihood that a claim could be made against the school in relation to a matter controlled by the Department. 138. Similarly, if the Department decided for some reason to set rates of pay for part-time teachers in a manner which, without justification, treated them less favourably than full-time teachers, how could it be said that a part-time teacher’s only remedy would be against the school? 139. The decision of the Supreme Court in McEneaney seems to me to be dispositive of the issue. In fulfilment of its Constitutional functions, the Department of Education provides for free primary education by inter alia paying teachers salaries. It has set rules, by virtue of which it makes representations to managers and to teachers as to how it will pay salaries, and it is bound by those representations. It has thereby made itself responsible for ensuring the lawful payment of those salaries. It would clearly not be acting in compliance with either its Constitutional duties or the implicit representations made by it if it adopted rules which contravene the provisions of enactments of the Oireachtas. 140. It is true that Ms. Boyle was not employed in a school “recognised” under the Education Act, 1998. However there is no legislation, or other rule of law, to prevent the Minister from entering into the kind of arrangement under which Ms. Boyle was employed for over twenty years. During that time, she was paid at a rate determined by the Minister. In accordance with rules promulgated from time to time by the Minister, she was paid qualification allowances by the Department, put on a twelve-month salary with provision for sick leave and maternity leave, put on an incremental scale, and, ultimately, paid redundancy. While she was still in employment the Department adopted a policy of phasing in direct payment to teachers in her position, rather than via the management committee. All of this is consistent with the legal responsibility of an employer for pay-related issues. 141. The Minister argues that Ms. Boyle has no entitlement to a pension because she was not a national school teacher, and the pension scheme is limited to national school teachers. It seems to me that this is a matter that goes to the appropriateness of he remedy rather than Ms. Boyle’s substantive rights under the Act. If one accepts, as I do, that for the purposes of the Act she must be deemed to be employed by the Minister, then what she has to do is demonstrate that she has been treated less favourably than full-time employees who are doing comparable work within the definition of the Act. The Labour Court found in her favour on this aspect, and that finding is not challenged in these judicial review proceedings. The mere fact that she worked in a different type of establishment cannot in itself be a bar to redress, and the Minister would bear the burden of showing that there was objective justification for the different treatment. 142. However, I consider that the Minister’s complaint about the redress ordered by the Labour Court is to some extent made out. 143. The powers of the Labour Court under s. 16 are to direct the employer to comply with s.9 (that is, to cease treating the part-time employee less favourably than the comparable full-time employee) and/or to direct the payment of compensation. 144. The parties made submissions in this context as to the effects of Directive 97/81, and whether it required the Labour Court to hold that the limitations imposed on it by the Act were such as to amount to a breach of the Directive. Ms. Boyle’s representatives argued that she should be retrospectively admitted to the superannuation scheme with effect from the date upon which she became an eligible part-time teacher in 1992. The Labour Court considered that it could not do that because the Act was not enacted until 2001, and because of the six-month limitation period for the making of complaints. It did not, therefore, attempt to interpret the Directive in the manner contended for but applied the terms of the Act as it understood them to be. 145. However, I do not think that the jurisdiction to direct compliance with the terms of the Act can encompass ordering the Minister to admit the claimant to a particular statutory scheme, the terms of which set out qualifying conditions including what appear to be a requirement to pay contributions. This goes beyond ordering an employer to cease discriminating and comply with the Act, and I consider it to be ultra vires the powers of the Labour Court. It seems to me that the loss suffered by the claimant in these circumstances is more appropriately dealt with by way of compensation. 146. The power to award compensation is not limited by the terms of the Act to established special damage and I do not consider that the Labour Court acted irrationally or unlawfully in awarding €10,000 for the “general effects” of the discrimination suffered by Ms. Boyle. However, I propose to remit the matter to the Labour Court for reconsideration of the question of compensation, to take account of the findings of this court as to the invalidity of the direction to admit the claimant to the superannuation scheme. Summary |