Workplace Support
The ASTI Industrial Relations (IR) team has extensive professional experience and expert knowledge about the education sector to put at your disposal. The team is here to:
- Answer your queries
- Provide information
- Investigate or make representations on your behalf and
- Support and represent you if you have a workplace issue of any kind.
Answers and Advice
If you have a question about your employment rights or you need advice about your job, you can contact ASTI Head Office for an answer. Your call or email will be put through to the IR official or administrative officer responsible for your school. If you have a query about leave, Teaching Council registration, retirement or pensions, you will be put through to a member of the IR team who has specialist knowledge in those areas. In most cases, you will be able to get immediate advice and answers to your questions. Sometimes a query will require further investigation, more specialist knowledge, or for representations to be made on your behalf. You may wish to arrange a meeting with your IR representative to discuss the issue further. In all cases your contact is logged on a computer system, which keeps your query active until it is resolved.
Support and Representation
If you have an employment issue that needs to be pursued further – for example, if your rights are being infringed or you want to make a claim under employment or equality legislation – your ASTI IR official can represent you in meetings with school management or with the Department of Education. Many issues can be resolved through discussion at this level but, if necessary, your IR representative will advise and support you through the next steps. They can prepare your case for, and represent you at, any necessary meetings or hearings.
ASTI Casework
The ASTI provides advice and representation to members whose employment rights may be infringed. Through the ASTI, members can access professional industrial relations support and advice, and legal representation, if necessary. ASTI staff represent members in meetings with school management and the Department of Education. Most issues can be resolved through discussion at this level. Where necessary, however, the ASTI will represent and support members in cases taken under employment or equality legislation.
If you have a question about your employment rights, you can contact your Industrial Relations official for expert advice.
Read about some cases taken by the ASTI below.
2019
ASTI wins long running unfair dismissals case
An ASTI member was supported by the union in her successful case against her employer.
A long-running unfair dismissals case involving determinations from the Labour Court and the High Court came to a successful conclusion for the ASTI member in July 2019. The teacher was originally employed without contract in a Leinster community school in August 2013. She was requested to sign a contract in October 2015 whereby her employment would be regarded as being under the terms of a ‘fixed-term’ contract and not as a permanent employee, as had been her actual status by dint of her having more than one year’s continuous service in the school.
While there are several strands to this case, one of those strands was the fact that the member was not aware at the time that she was signing away her accrued rights. When signing the document in October 2015, she was not advised of her legal rights or informed to take appropriate advice. They assumed it was a mere formality.
Arising from her perceived status as a fixed-term teacher, from the perspective of her employer, she was not re-engaged by the school in 2016.
Unfair dismissal
With ASTI assistance, the member took a claim for unfair dismissal under the Unfair Dismissals Acts to the Workplace Relations Commission in October 2016. After two hearings, a disappointing decision was issued in May 2017. Section 2(2) of the Unfair Dismissals Acts permits limited exclusions from the Acts. The adjudicator determined that the provisions of that section of the Acts applied in this case and, as such, the Unfair Dismissals Acts did not apply. The ASTI believed that the adjudicator’s decision erred in law and in fact when interpreting that provision.
The ASTI initiated an appeal to the Labour Court. The hearing took place in October 2017 and, in a favourable outcome, the court overturned the determination of the adjudication officer. The court found that the complainant was employed on a permanent contract prior to signing the fixed-term contract, and pointed out that this change in status was not brought to the teacher’s attention. The court noted that the employer was not even aware of the member’s employment status and therefore was not in a position to ensure that they gave informed consent. The court was aware that the member was by that stage teaching elsewhere. However, acting on her preferred form of redress to be re-instated in her position, the court directed the school to re-engage the teacher from the commencement of the 2018/2019 school year, without loss of prior service.
Waiver
An aspect of the matter that was to become important to the later determinations was that when entering into the 2015/2016 contract with the school, the member signed a contract that contained a waiver, or exclusionary principle. This purported to remove the member’s right to take a claim under the Unfair Dismissals Acts when her dismissal consisted only of the expiry of her fixed-term contract. The Labour Court ruled that the waiver provision in the context of the member’s case was ineffective and, because her permanent contract pre-dated the fixed-term contract, the earlier contract was to prevail.
Appeal
Following this ruling the school appealed the Labour Court’s Determination to the High Court, citing a point of law.
In March 2018, a High Court judge remitted the case for reconsideration by the Labour Court. Essentially, the Labour Court was asked to make clearer the correct principles of law that were applicable by looking again at issues relating to the waiver clause and other matters. Again, in June 2018, the Labour Court ruled in the member’s favour. An application by the school to put a stay on the implementation of the determination pending the outcome of an appeal was refused by the High Court and the member was re-engaged.
The school proceeded with an appeal to the High Court in May 2019 on grounds that the High Court judge described as “beguiling in their simplicity”. Judgment in the matter was delivered in July 2019. Among the issues raised by the school in its appeal were that there was no legal obligation to advise the member that she was relinquishing her rights under the Acts, the decision by the Labour Court not to run the second hearing on a de novo basis, and that a differently constituted division of the Labour Court should have dealt with the matter.
Finding
The High Court finding said that the protection afforded to employees under the Unfair Dismissals Act is more robust than the school’s submission appears to suggest. The judge made a finding of fact that the teacher was not advised she was relinquishing rights under the Unfair Dismissals Act when signing the fixed-term contract. The judge said: “It appears that both the school and the teacher were labouring under the misapprehension that [the teacher] had not acquired a right to permanent employment under the Unfair Dismissals Act”.
The judge found that the contract in question “would have to include an express acknowledgement to the effect that the employee was relinquishing their acquired right to the protection of the Act”. This is part of the implied obligation of mutual trust and confidence between an employer and employee, which is necessary “to reflect the unequal bargaining power between an employer and employee”.
The judge took further issue with the use of a fixed-term contract, highlighting that such a contract needed to consider the entire employment history of an employee. In this instance he said that: “It would be unreal to treat the employment under the contract of October 2015 as a new employment”. With regard to the approach taken by the Labour Court, Justice Simons said that: “The Labour Court had some flexibility as to the procedure which it adopted, subject always to the overarching obligation that the procedure be fair” and said that there is “nothing in the approach adopted by the Labour Court on the resumed hearing which could be characterised as failing to comply with fair procedures”.
The appeal was dismissed with costs awarded against the school. The case had come to a conclusion. The ASTI welcomes the outcome of the case and commends the member for her tenacity, fortitude and determination to see justice prevail.
2015
ASTI member achieves CID after appeal
The ASTI supported a teacher in a successful appeal to the Rights Commissioner, which resulted in the teacher being awarded a contract of indefinite duration (CID).
The case
The teacher, who taught in the North West, had taught in the school since 2009 on successive fixed-term contracts, some of which were Department paid, and some partly Department paid and partly paid by the school. After completing four successive years' service, and with a guarantee of work with the school for the fifth successive year, the teacher wrote to the board of management of the school seeking that they confirm that she would be provided with a CID.
The school management responded that, given the school's ongoing requirement for a teacher, along with the teacher's four successive years teaching in the school, they would not contest the request and would inform the Department of Education and Skills (DES) of their intention to award the CID in September 2014.
The DES refused to award the CID on the grounds that, according to the terms of Department Circular 34/2009, the teacher did not have "appropriate teaching service in an Oireachtas-funded post in the school". The teacher appealed this decision to the Independent Adjudicator, who determined that the teacher did not meet the requirements set out in the Circular Letter.
Appeal
With the ASTI's support, the teacher took her case to the Rights Commissioner
The ASTI claimed that under Section 9 of the Protection of Employees (Fixed-Term Work) Act 2001, the teacher had worked in excess of four successive continuous years of employment in the school. At the commencement of the fifth year, the teacher was provided with a Department-paid fixed-term contract of employment. Under the terms of the Act this should have been a CID and the ASTI and the teacher sought to have the contract amended to a CID.
The school acknowledged that the teacher had been employed by them continuously since September 2009; that they had not set out in writing any objective justification for not awarding a CID; and, that the only objection was from the DES.
Findings and decision
The Rights Commissioner found: "It is not in dispute that the claimant has been continuously employed by the respondent on a series of fixed-term contracts of employment since September 1, 2009. This means that on September 1, 2013, the aggregate duration of her fixed-term contracts of employment exceeded four years. This in turn means that in accordance with the law the claimant's contract of employment became a contract of indefinite duration on that date, unless it was saved by subsection 4 in that there were objective grounds justifying a renewal of [the teacher’s] fixed-term contract of employment. No submissions of any such objective grounds were submitted to me. Indeed the contrary is the case based on correspondence from the respondent.
I find that is it clear by operation of law that on September 1, 2013, the claimant's contract of employment in accordance with the provision of Section 9(3) of the Act becomes a contract of indefinite duration." The Rights Commissioner upheld the complaint. The school was instructed to provide the teacher with a CID, effective from September 1, 2013.
2014
ASTI wins increased CID hours
ASTI case results in CID calculated on average hours
A case taken on behalf of a teacher whose hours were reduced in the year prior to the granting of her contract of indefinite duration (CID), has resulted in her CID hours being increased to the average number of hours she worked over the previous four years. The teacher had been employed on three successive fixed-term contracts in the school, each for in excess of 21 hours. In her fourth year, she received two contracts: a fixed-term contract for 16 hours 30 minutes from September 1; and, another contract, three months later, for a further three hours 40 minutes ‘appointment hours’. The following year she received a CID based on the hours of the 16 hours 30 minutes contract only. She was also given a fixed-term contract for three hours 41 minutes.
ASTI case
The ASTI argued that the teacher should have received a CID for all of the hours worked in the year previous to the award of the CID, as there were no ‘objective grounds’ to separate out the hours into two contracts, or to classify one as not meriting a CID.
The ASTI case contended that these hours and the work attaching to them formed part of the teacher’s full contract for the first three years and were only separated out on the fourth contract and reclassified, subsequently, as being exempt from the protections of the Fixed-Term Act. The ASTI pointed out that the commencement of her fourth year was the only time that the teacher was not on full hours and that some of the classes the teacher had held until then were reassigned to two new employees rather than given to the teacher. The ASTI further noted that other teachers employed on their fourth contract in the same year and in contention for a CID in the following year did not have their hours reduced.
The finding
In his finding, the Rights Commissioner noted that in each year prior to her fourth, the teacher worked in excess of 21 hours. He noted also that immediately after the teacher was awarded a CID, she was working 20 hours and 10 minutes, having been issued with a fixed-term contract as well as her CID. In the following year, she was again working 21 hours 59 minutes.
The Rights Commissioner found that the school “offered no credible explanation as to why the claimant alone of those teachers on their fourth year of fixed-term contracts of employment and in contention for a CID, had her hours reduced”.
He concluded that: “The reason for the reduction in the claimant’s weekly working hours for a relatively short period of three months from that which she had worked previously and, indeed, has also worked subsequently, was related to the fact that she was imminently entitled to a CID and was an effort to reduce her entitlement in respect of working hours in that regard.”
The Rights Commissioner found that the three-month period when the teacher worked reduced hours was actually “an aberration not reflective of her normal working weekly hours”. He found that her normal weekly working hours over the four years, excluding that period, was on average 21 hours and 22 minutes. Accordingly, he deemed the teacher entitled to a CID for at least 21 hours and 22 minutes.
Case results in the doubling of CID hours
The Adjudicator found that it had been unjust not to include all of the hours taught in the previous year in a Munster teacher’s contract of indefinite duration (CID) when it was originally awarded.
Background
The teacher had been awarded a CID for 11 hours from the 2011/2012 school year. In the previous year, she had been employed on a fixed-term contract for 11 hours and on a second fixed-term contract for a further 11 hours to cover a job-share arrangement.
While under CID contract for 11 hours, the teacher also worked additional hours in the school under further fixed-term contracts, and she submitted a claim to the school for these hours to be added to her CID. The Department of Education refused the claim on the basis that she must hold these hours for four years in order to become eligible for a CID.
The case
Supported by her ASTI industrial relations official, the teacher submitted an appeal to the Adjudicator, who determined that the teacher should have received a CID for all the hours she was teaching in the year prior to being granted a CID. He stated that: “In calculating the hours of a CID, the Transitional Agreement does not exclude hours attributable to approved schemes of leave of absence in the previous school year. The Transitional Agreement has been consistently interpreted for some time as providing, after qualification for a CID has been established, that in the calculation of the hours of a CID, hours in the previous school year attributable to approved leave are not to be excluded”.
The Adjudicator ruled that the member was entitled to a CID for 22 hours from September 2011.
ASTI successfully challenges Department stance on CID service requirement
An ASTI-supported case has refuted a claim by the Department of Education and Skills that teachers must be employed for five days each week in order to meet the requirements for a CID.
The ASTI took the case on behalf of a teacher who had been employed in a school in Leinster for well in excess of the required four years when she made a claim for a CID. Though the school accepted that the teacher had been employed continuously in the school since September 2002, and that her hours were paid for out of Oireachtas funds, her claim for a CID was denied. The school informed the teacher that she was refused on the grounds that she did not have sufficient continuous teaching service under Department of Education and Skills regulations. The Department of Education stated that their records indicated that the teacher did not meet the requirement for qualification for a CID and that the teacher did not have “appropriate continuous teaching service in an Oireachtas-funded post in the school, i.e., was not employed for five days per week on some weeks.”
The Adjudicator accepted the case made on behalf of the member, that although the school issued her with a salary, the monies flowed from the Department of Education and Skills. He also acknowledged that the school accepted that the teacher was in fact employed on a five-day per week basis but stated: “In any event the fact that a teacher is not employed for five days per week is not grounds for exclusion of that teacher from qualification for a CID”. The Adjudicator found that no grounds to disqualify the teacher from qualification for a CID had been established and he awarded the teacher a CID for 17 hours and 20 minutes from September 2013.
