Catholic University School v Dooley

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 20 July 2010
• Neutral Citation: [2010] IEHC 496
• Court: High Court
• Docket Number: 92 MCA/2009,[2009 Nos. 92, 93 and 96 MCA]
• Date: 20 July 2010

[2010] IEHC 496

THE HIGH COURT

[number] 92 MCA/2009

[No. 93 M.C.A./2009)

[No. 96 M.C.A./2009]

Catholic University School v Dooley

IN THE MATTER OF AN APPEAL PURSUANT TO S.17(6) OF THE PROTECTION OF EMPLOYEES (PART TIME WORK) ACT 2001,

BETWEEN

CATHOLIC UNIVERSITY SCHOOL

APPELLANT

-v-

COLM DOOLEY

RESPONDENT

AND

IN THE MATTER OF AN APPEAL PURSUANT TO S. 17(6) OF THE PROTECTION OF EMPLOYEES (FIXED TERM WORK) ACT 2001,

Catholic University School v Dooley

CATHOLIC UNIVERSITY SCHOOL

-v-

AOIFE SCANNELL

RSC O. 84C

PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT 2001 S17(6)

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S15(6)

EEC DIR 97/81 ART 1

EEC DIR 97/81 ART 2(1)

EEC DIR 97/81 ANNEX CLAUSE 1

EEC DIR 97/81 ANNEX CLAUSE 3

EEC DIR 97/81 ANNEX CLAUSE 4

EEC DIR 97/81 ANNEX CLAUSE 6

EEC DIR 97/81 ANNEX CLAUSE 4(1)

PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT 2001 S3(1)

PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT 2001 S7(1)

PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT 2001 S7(2)

PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT 2001 S7(3)

PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT 2001 S9

NATIONAL UNIVERSITY OF IRELAND CORK v AHERN & ORS 2005 2 IR 577 2005/44/9152 2005 IESC 40

ANTI-DISCRIMINATION (PAY) ACT 1974 S2(3)

SULLIVAN v DEPT OF EDUCATION 1998 ELR 217

WILTON v STEEL CO OF IRELAND LTD 1999 ELR 1 1998/34/13339

MIN FOR FINANCE v MCARDLE 2007 18 ELR 165 2007/40/8242 2007 IEHC 98

MANNION & ORS v SCOIL AINE (RIGHTS CMSR DECISION)

NOONE v ST MARYS HOLY FAITH SECONDARY SCHOOL KILLESTER (RIGHTS CMSR DECISION)

O'KEEFFE v HICKEY & ORS 2009 2 IR 302 2008/50/10575 2008 IESC 72

EDUCATION ACT 1998 S24

EDUCATION ACT 1998 S24(1)

PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT 2001 S9(1)

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S6(1)

EEC DIR 1999/70 ANNEX CLAUSE 8(1)

EMPLOYMENT EQUALITY ACT 1998 S19(5)

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S7

PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT 2001 S12

PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT 2001 S12(1)

HILL & STAPLETON v REVENUE CMRS & DEPT OF FINANCE 1998 AER (EC) 722 1998 ECR I-3739 1998 3 CMLR 81 1999 ICR 48 1998 IRLR 466

JORGENSEN v FORENINGEN AF SPECIALLAEGER & SYGESIKRINGENS FORHANDLINGSUDVALG 2000 ECR I-2447 2002 1 CMLR 40 2000 IRLR 726

SCHONHEIT v STADT FRANKFURT AM MAIN; BECKER v LAND HESSEN 2003 ECR I-12575 2006 1 CMLR 51 2004 IRLR 983

DEL CERRO ALONSO v OSAKIDETZA-SERVICIO VASCO DE SALUD 2007 ECR I-7109 2007 3 CMLR 54 2008 ICR 145 2007 IRLR 911

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S2(1)

EDUCATION ACT 1998 S24(6)

EDUCATION ACT 1998 S24(2)

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S8

PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT 2001 S7

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S5

EDUCATION ACT 1998 S24(3)

EDUCATION ACT 1998 S24(5)

EMPLOYMENT LAW

Part time workers

Comparator - Employer - Pay - Contract of employment - Whether chosen comparator appropriate - Whether Labour Court erred in law - Education - Teachers - Whether privately paid teacher could choose State paid teacher as comparator - Whether school or Department of Education was employer of comparators - Defence of objective justification - National University of Ireland Cork v Ahern [2005] IESC 50, [2005] 2 IR 577 applied; Sullivan v Department of Education [1998] 9 ELR 217 approved; O'Keeffe v Hickey [2008] IESC 72, [2009] 2 IR 302 distinguished - Protection of Employees (Part-Time Work) Act 2001, (No 45) - Council Directive 97/81/EC - Appeal allowed; matter remitted to Labour Court (2009/92, 93 & 96MCA - Dunne J - 20/7/2010) [2010] IEHC 496

Catholic University School v Dooley

Facts: The appellant school was a private school and the teacher claimants contended that they were entitled to be paid at the same rate as their State paid colleagues. One of the claimants had brought a claim under both Protection of Employees (Fixed Term Work) Act 2003 and Protection of Employees (Part time Work) Act 2001 and the second claimant brought a claim under one of the Acts. The Acts implemented the Part time Workers Directive (Directive 97/81/EC and the Fixed Term Workers Directive (Directive 99/70/EC). The Labour Court concluded that the claimants were entitled to a contract on terms and conditions pro rata with that of his comparator, rejecting the defence of objective justification. The appellant sought an order setting aside the determination of the Labour Court. The issue arose as to whether the appropriate comparator had been - that of a permanent teacher on an incremental scale paid by the Department of Education and whether Directive 97/81/EC was properly transposed into national law. The question of whether the selection of the school as an emanation of the state amounted to an error of law further arose for consideration, along with objective justification for differences in treatment.

Held by Dunne J. that the Labour Court fell into error in the selection of the chosen comparators. The school had no part in determining the salary and terms of teachers paid by the Department and the Labour Court fell into error in this regard. The test to be applied in considering a defence of objective justification was that the unequal treatment responded to a genuine need. The purpose of the Directives and legislation implementing them was to prevent discrimination against workers by reason of their status as fixed-term or part-time workers.

Reporter: E.F.

1 JUDGMENT of Ms. Justice Dunne delivered the 20th day of July 2010

2 The appellant herein has sought an order pursuant to the provisions of O. 84C of the Rules of the Superior Courts and pursuant to s. 17(6) of the Protection of Employees (Part Time Work) Act 2001, setting aside the determination of the Labour Court No. PTD092 dated the 22 ^nd April 2009, and pursuant to O. 84C of the Rules of the Superior Courts and pursuant to s. 15(6) of the Protection of Employees (Fixed Term Work) Act 2003, setting aside the determination of the Labour Court No. FTD094 dated the 21 ^st April, 2009 and finally in respect of an order pursuant to the provisions of O. 84C of the Rules of the Superior Courts and pursuant to s. 17(6) of the Protection of Employees (Part Time Work) Act 2001 setting aside the determination of the labour Court No. PTD093 dated the 22 ^nd April, 2009. For ease of reference I will refer to the appellant as "the school" and to the respondents as "the claimants".

3 It will be seen that Mr. Dooley, one of the claimants, has brought a claim in respect of two Acts referred to in the title of these proceedings and Ms. Scannell, the second claimant, has brought a claim under one of those Acts. The same issues arise in respect of the appeals and all the appeals were heard at the same time and it is appropriate therefore to deal with the matter by way of one judgment.

4 The school is a private school which employs a number of full time and part time teachers. The majority of the teachers are paid salary and other benefits by the Department of Education and Science and a small number (including the claimants) are privately paid by the school. There is no dispute that that the claimants are treated less favourably than their incremental, Department paid colleagues. Without going into all of the details at this point, it is that difference in treatment which prompted the claimants to bring their dispute with the school to a Rights Commissioner in the first place and ultimately before the Labour Court. The claimants make the point that they are entitled to be paid at the same rate as their State paid colleagues. It is contended on behalf of the school that the pay differential is independent of the claimants part time and/or fixed term status and in those circumstances that it is not open to the claimants to rely on the rights and entitlement to which a State paid teacher is entitled and accordingly, the legislation relied on together with the European Directives to which reference will be made later does not avail the claimants.

5 I propose now to refer to the Directives and to the relevant legislation. The Part Time Workers Directive (Directive 97/81/EC) provides as follows:-

"Article 1 The purpose of the Directive is to implement the framework agreement on part-time work concluded on 6 June 1997 by the general cross-industry organisations ... annexed hereto."

6 Article 2(1) Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 20 ^th January 2000, or shall ensure that, by that date at the latest, the social partners have introduced the necessary measures by agreement, the Member States being required to take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by this Directive. They shall forthwith inform the Commission thereof.

7 Clause 1. Purpose

8 The purpose of this Framework Agreement is:

9 (a) to provide for the removal of discrimination against part-time workers and to improve the quality of part-time work;

10 (b) to facilitate the development of part-time work on a voluntary basis and to contribute to the flexible organization of working time in a manner which takes into account the needs of employers and workers.

11 Clause 3. Definitions

12 For the purpose of this agreement:

13 1. The term 'part-time worker' refers to an employee whose normal hours of work, calculated on a weekly basis or on average over a period of employment of up to one year, are less than the normal hours of work of a comparable full-time worker.

14 2. The term 'comparable full-time worker' means a full-time worker in the same establishment having the same type of employment contract or relationship, who is engaged in the same or a similar work/occupation, due regard...