Minister for Education & Science v Labour Court

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 03 July 2015
• Neutral Citation: [2015] IEHC 429
• Court: High Court
• Docket Number: [Record No. 2012/685 JR]
• Date: 03 July 2015

[2015] IEHC 429

THE HIGH COURT

JUDICIAL REVIEW

O'Malley Iseult J.

[Record No. 2012/685 JR]

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

Employment – The Protection of Employees (Part Time Work) Act, 2001 – Part-time employee – S. 24 (5) of the Education Act, 1998 – Equal Treatment

Facts: The applicant sought an order of certiorari by way of judicial review for quashing the determination of the first named respondent that the first named notice party was an employee of the applicant who had been treated less favourably than a full-time comparator and therefore, she was entitled to the National Teachers Superannuation Scheme. The applicant contended that the first named respondent had exceeded its jurisdiction and that there was no employer-employee relationship between the applicant and the first name notice party, who was merely a part-time teacher in a State-funded school. The first named notice party contended that the judicial review was not a proper remedy to raise issues of point of law and that she had been treated less favourably than a full-time national teacher employed in a primary school.

Ms. Justice O'Malley Iseult refused to grant an order of certiorari to the applicant. The Court held that the first named respondent's determination was correct but in part. The Court held that though the first named notice party was not employed in a school recognized under the Education Act, 1998 yet payment of all benefits to her by the applicant through the grants paid by the Department of Education carrying out its constitutional duties would imply an employer-employee relationship. The Court opined that the education system worked on a tripartite arrangement where the employer's role had been split uniquely, part of which was played by the management and consisted of the day-to-day running of the schools and the other concerned the Department of Education setting up rules and payment of salaries that carried the legal obligation to pay. The Court, however, held that the first named respondent's decision to admit the first named notice party was ultra vires. The Court remitted the case to the first named respondent for reconsideration of the question of compensation.

JUDGMENT of Ms. Justice Iseult O'Malley delivered the 3rd day of July, 2015

Introduction

1 This case concerns the employment status of a part-time preschool teacher for the purposes of the Protection of Employees (Part Time Work) Act, 2001 (‘the Act’). The applicant (‘the Minister’) seeks to quash a determination of the respondent (‘the Labour Court’) by which that body decided that the first named notice party (‘Ms Boyle’) was an employee of the Minister within the meaning of that Act, and that she had been treated less favourably than a full-time comparator in relation to pension rights. It directed accordingly that the Minister should admit her to the National Teachers Superannuation Scheme with effect from six months before the initiation of her claim and pay her a sum of €10,000 by way of compensation for discriminating against her.

2 The Minister claims that the Labour Court exceeded its jurisdiction and erred in law, in that, according to the Minister,

1. the Minister had no contractual relationship with Ms Boyle and was not her employer within the meaning of the Act;

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.

3 Ms. Boyle has sought to uphold the conclusions of the Labour Court. She has also maintained that judicial review is not a proper avenue, in that the Minister has also lodged an appeal on points of law, as provided for by the Act, but has not progressed that appeal pending the outcome of the judicial review. The Minister has stated that judicial review, rather than the statutory process, has been pursued because the decision of the High Court on a point of law would be final whereas judicial review leaves open the possibility of an appeal from this court.

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

5 It is common case that Ms. Boyle was recruited and employed as a teacher in a grant-aided preschool for the children of travellers for over 20 years, until it closed in 2011. A grant amounting to 98% of the salary payable to a primary school teacher was paid to the management committee of the preschool in respect of her salary. She was the only teacher in the preschool and worked 15 hours per week.

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

11 The long title of the Act states that it is to provide for, inter alia, the implementation of Directive 97/81/EC of 15 December, 1997.

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

‘(a) a contract of service or apprenticeship, and

(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.’

15 ‘Employee’ means

‘…a person of any age who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of this Act, a person holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act, 1956) shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority for the purposes of the Local Government Act, 1941, or of a harbour authority, health board or vocational education committee shall be deemed to be an employee employed by the authority, board or committee, as the case may be.’

16 The definition of ‘employer’ provides that

‘“employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual's employer.’

17 Section 7 creates the framework for comparisons between part-time and full-time employees. Section 7(2) and (3) provides as follows:

(2) For the purposes of this Part, an employee is a comparable employee in relation to the employee firstly mentioned in...