Blackrock College v Mary Browne
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 20 December 2013 |
| Neutral Citation | [2013] IEHC 607 |
| Court | High Court |
| Date | 20 December 2013 |
[2013] IEHC 607
THE HIGH COURT
BETWEEN
AND
PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT 2001 S17(6)
RSC O.84C
PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT 2001 S16
PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT 2001 S17
PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT 2001 S7
CATHOLIC UNIVERSITY SCHOOL v DOOLEY 2011 4 IR 517 2011/8/1840 2010 IEHC 496
EMI RECORDS (IRL) LTD & ORS v DATA PROTECTION CMSR & EIRCOM LTD UNREP CLARKE 3.7.2013 2013 IESC 34
TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267
SRL CILFIT & LANIFICIO DE GAVARDO SPA v MINISTRY OF HEALTH (CASE C-283/81) 1982 ECR 3415 1983 1 CMLR 472
EEC DIR 81/1997 CLAUSE 3(2)
EDUCATION ACT 1998 S24(3)
METOCK & ORS v MIN FOR JUSTICE & ORS UNREP FINLAY GEOGHEGAN 14.3.2008 2008/39/8556 2008 IEHC 77
MIN FOR AGRICULTURE v BARRY & ORS 2009 1 IR 215 2008/40/8622 2008 IEHC 216
O'KELLY & ORS v TRUSTHOUSE FORTE PLC 1984 QB 90 1983 3 WLR 605 1983 3 AER 456 1983 ICR 728
AN POST v MONAGHAN & WADE UNREP HEDIGAN 26.8.2013 2013 IEHC 404
EEC DIR 81/1997
PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT 2001 S7(2)(A)
PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT 2001 S7(2)
SPECIALARBEJDERFORBUNDET I DANMARK v DANSK INDUSTRI ACTING FOR ROYAL COPENHAGEN A/S 1995 ECR I-1275 1995 AER (EC) 577 1996 1 CMLR 515 1996 ICR 51 1995 IRLR 648
WILTON v STEEL CO OF IRELAND LTD 1999 ELR 1 1998/34/13339
NATIONAL UNIVERSITY OF IRELAND CORK v AHERN & ORS 2005 2 IR 577 2005/44/9152 2005 IESC 40
MIN FOR FINANCE v MCARDLE 2007 18 ELR 165 2007/40/8242 2007 IEHC 98
O'KEEFFE v HICKEY 2009 2 IR 302 2008/50/10575 2008 IESC 72
ENDERBY v FRENCHAY HA 1994 1 AER 495 1993 ECR I-5535 1994 1 CMLR 8 1994 ICR 112 1993 IRLR 591
EMPLOYMENT
Appeal
Decision of Labour Court - Less favourable treatment - Comparator - Jurisdiction of court to interfere with decision of Labour Court - Whether subdivision of category of comparators permitted - Respondent part time teacher at privately funded appellant - Complaint made to rights commissioner of less favourable treatment than State funded full time teachers - Complaint found to be well founded - Appeal by appellant to Labour Court - Preliminary ruling State funded teacher appropriate comparator - Appeal of ruling to High Court - Whether appeal of decision appropriate - Whether error in law in finding State funded full time teacher appropriate comparator - EMI Records (Ireland) Ltd v Data Protection [2013] IESC 34, (Unrep, Clarke J, 3/7/2013); C.I.L.F.I.T. v Ministry of Health (Case C-283/81) [1982] ECR 3415; Monin Automobiles (Case C-428/93) 1994 ECR I-01707 and National University of Ireland Cork v Ahern [2005] IESC 40, [2005] 2 IR 577 applied - Koczan v Financial Services Ombudsman [2010] IEHC 407, (Unrep, Hogan J, 1/11/2010); An Post v Monaghan [2013] IEHC 404, (Unrep, Hedigan J, 26/8/2013) and Minister for Finance v McArdle [2007] IEHC 98, [2007] 2 ILRM 438 approved - Metock v Minister For Justice, Equality and Law Reform [2008] IEHC 77, (Unrep, Finlay Geoghegan J, 14/3/2008); Irish Trust Bank v Central Bank of Ireland [1976-7] ILRM 50; Minister For Agriculture v Barry [2008] IEHC 216, [2009] 1 IR 215; O'Kelly v Trusthouse Forte Plc [1984] QB 90; Catholic University School v Dooley [2010] IEHC 496, [2011] 4 IR 517; Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1998] 1 IR 34; Royal Copenhagen [1995] ECR I-1275; Wilton v Steel Company of Ireland Ltd (Unrep, O'Sullivan J, 28/5/1998); O'Keeffe v Hickey [2008] IESC 72, [2009] 2 IR 302 and Enderby (Case C-127/92) [1993] ECR I-5535 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 84 - Education Act 1998 (No 51), s 24(3) - Protection of Employees (Part-Time Work) Act 2001 (No 45), ss 7, 16 and 17 - Treaty on the Functioning of the European Union, art 267 - Council Directive 97/81/EC of 15 December 1997, cl 3(2) - Appeal allowed (2012/286MCA - Hedigan J - 20/12/2013) [2013] IEHC 607
Blackrock College v Browne
Facts: The appellant sought an order pursuant to s. 17 Protection of Employees (Part time Work) Act 2001, setting aside the determination of the Labour Court. The respondent was a secondary school teacher, initially teaching 14 hours a week. She brought a claim before the Rights Commissioner claiming that she had been treated less favourably in respect of her pay, pension and other conditions of employment than a comparator teacher, employed in a full-time capacity. Thereafter, the Labour Court had determined that the claim of the respondent was well-founded. The essential question was whether the comparator chosen by the respondent was correct. The Court considered whether a fulltime departmental teacher was the correct one or a full-time private teacher by way of a true comparison.
Held by Hedigan J. that the High Court had already held that a Departmental teacher was an incorrect comparator. There would be an order setting aside the determination of the Labour Court on the basis that it erred in law in finding that the respondent was entitled to choose a full-time Departmental-funded teacher as a comparator.
1. The appellant seeks an order pursuant to s. 17 (6) of the Protection of Employees (Part Time Work) Act 2001, and pursuant to the provisions of O. 84C of the Rules of the Superior Courts setting aside the determination of the Labour Court of 18 th July, 2012, made in favour of the respondent.
2. The appellant is a private school and has its place of business at Rock Road, Blackrock, County Dublin. The respondent is a secondary school teacher employed by the appellant.
2 3.1 The respondent is a fully qualified secondary school teacher and is registered with the Teaching Council. She has been employed privately by the appellant to teach Spanish in the appellant college since 6 th November, 2000. The appellant employs a number of fulltime and part-time teachers, most of whom are paid a salary and other benefits by the Department, and a small number (such as the respondent) who are paid directly by the appellant. The respondent teaches 14 hours a week. She is also required to perform certain work outside of school hours in the same manner as comparable full-time teachers that are paid by the Department of Education and Skills (hereinafter "the Department").
3 3.2 In accordance with circular 25/2011 published by the Department on the 8 th April, 2011, the respondent is required to work up to an additional 33 hours each year. These additional hours are not pro-rata by reference to the respondent's part-time hours/salary. Her proportionate additional hours are therefore in fact greater than those of fulltime teachers in the school.
4 3.3 On 12 th July, 2006, the respondent brought a complaint before the Rights Commissioner pursuant to s. 16 of the Protection of Employees (Part-Time Work) Act 2001, claiming that she had been treated less favourably in respect of her pay, pension and other conditions of employment than another teacher (the comparator teacher) paid by the Department and who is employed in a fulltime capacity. The Rights Commissioner on 30 th September, 2008, decided that the respondent's complaint was well founded and directed that she be awarded a contract of indefinite duration comparable to her colleagues on the full time staff.
5 3.4 On 31 st October, 2008, the appellant appealed this decision pursuant to s. 17 of the 2001 Act, to the Labour Court contending that the respondent should not be entitled to use as a comparator a fulltime Department-funded teacher. The Labour Court, with the agreement of the parties and with a view to saving costs, determined by way of preliminary hearing the question of whether the comparator nominated by the respondent was an appropriate comparator for the purposes of s. 7 of the 2001 Act.
In its determination of the preliminary issue of 2 nd February, 2009, the Labour Court declined to uphold the school's case on the appropriateness of the respondent's chosen comparator finding that:-
The nominated comparator was a comparable employee vis a vis the respondent;
The respondent and the comparator were engaged in like work for the purposes of the act;
The respondent was entitled to succeed in her claim unless the impugned differences were justified on objective grounds.
6 3.5 When the case came on for hearing on 13 th of February 2012, the appellant sought to have the Labour Court reverse or vacate its preliminary determination on the basis that the Labour Court's preliminary determination was in conflict with the decision of the High Court in Catholic University School v Dooley & Keogh [2010] IEHC 496 (hereinafter "CUS") which was delivered after this preliminary ruling. In that case, Dunne J. found that the Labour Court had misdirected itself in law in an almost identical ruling in a similar case in relation to the appropriateness of the comparator who was paid by the state rather than by the individual school.
7 3.6 The Labour Court ruled on 13 th February, 2012, that it had no jurisdiction to vacate its preliminary determination and proceeded on the basis that there were two outstanding issues, namely whether there were objective grounds justifying the less favourable treatment and if there was no objective justification the redress to which the respondent was entitled.
8 3.7 On 18 th July, 2012, the Labour Court determined that there were no objective grounds justifying the less favourable treatment and therefore found that the respondent's claim was well founded. It determined that the respondent was entitled to the same terms and conditions of employment as those afforded to her nominated comparator with effect from a date 6 months prior to the date on which her claim was initiated...
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