Department of Education & Skills (Represented by Cathy Smith B.L., Instructed by Chief State Solicitors Office) v Kenneth McCarthy

• Jurisdiction: Ireland
• Judgment Date: 09 January 2018
• Judgment citation (vLex): [2018] 1 JIEC 0901
• Date: 09 January 2018
• Court: Employment Appeal Tribunal (Ireland)
• Docket Number: FULL RECOMMENDATION,ADJ-00002702 CA-00003669-002,DETERMINATION NO.TED181

Labour Court (Ireland)

FULL RECOMMENDATION

TE/17/33

DETERMINATION NO.TED181

ADJ-00002702 CA-00003669-002

PARTIES:

Department of Education & Skills (Represented by Cathy Smith B.L., Instructed by Chief State Solicitors Office)

and

Kenneth McCarthy

DIVISION:

Chairman: Ms Jenkinson

Employer Member: Mr Marie

Worker Member: Ms Tanham

SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2014

SUBJECT:

1 1. An appeal of an Adjudication Officer's Decision No: ADJ-00002702.

BACKGROUND:

2 2. This is an appeal under Section 8(1) of the Terms of Employment (Information) Acts, 1994 to 2012. A Labour Court Hearing took place on the 8 November 2017. The following is the Court's Determination:

DETERMINATION:

3 This is an appeal by the Minister for Education and Skills against the Decision of an Adjudication Officer ADJ-00002702 under the Terms of Employment (Information), Act 1994 (the ‘1994 Act’). In this Decision the parties are referred to as they were at first instance, hence Mr McCarthy is referred to as ‘the Complainant’ and the Minister for Education and Skills is referred to as ‘the Respondent’.

Background

4 The Complainant is employed as a Principal Teacher since September 2009 at Kilmeen National School under a contract of employment with the Board of Management (‘the Board’) of the school. He was initially employed as a Teacher starting in September 2003.

5 A complaint of breaches of the 1994 Act was received by the Workplace Relations Commission on 5 ^th April 2016. The Complainant alleged that when he was appointed as an Administrative Principal at the school in September 2012, this change to his terms of employment was not notified to him in writing as required by Section 5 of the 1994 Act. He further alleges that when he was returned to Principal Teacher status in September 2015, this change, similarly, was not notified to him as required.

6 In a Decision dated 15 ^th June 2017, the Adjudication Officer permitted an extension of the time limit for presentation of the complaints and found that the complaints under the 1994 Act were well founded and ordered that a written statement in compliance with Section 3 of the 1994 Act, which statement to include a job title of Administrative Principal, be provided to the Complainant.

7 The Respondent appealed the Adjudication Officer Decision to this Court on 24 ^th July 2017. The appeal came before the Court on 8 ^th November 2017.

Preliminary Issue

8 A preliminary issue to be determined in this case is the question of who is the correct respondent. The Adjudication Officer found, at first instance, that the correct respondent was the Minister.

9 The Court indicated to the parties that it would issue a decision on this preliminary matter before proceeding, if necessary, to deal with the jurisdictional issue relating to the time limit and the substantive claims under...