Employment status found; Labour Court order to admit to pension scheme quashed as ultra vires.

Neutral Citation [2015] IEHC 429

THE HIGH COURT

[Record No. 2012/685 JR]

JUDICIAL REVIEW

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

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

the definition of “part-time employee” in this section (the “relevant part-time employee”) if –

(a) the employee and the relevant part-time employee are employed by the same employer or associated

employers and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

(b) in case paragraph (a) does not apply (including a case where the relevant part-time employee is the sole

employee of the employer), the employee is specified in a collective agreement, being an agreement that for the

time being has effect in relation to the relevant part-time employee, to be a type of employee who is to be

regarded for the purposes of this Part as a comparable employee in relation to the relevant part-time employee,

or

(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of

employment as the relevant part-time employee is employed in and one of the conditions referred to in subsection

(3) is satisfied in respect of those employees,

and references in this Part to a comparable full-time employee in relation to a part-time employee shall be construed

accordingly.

(3) The following are the conditions mentioned in subsection (2) –

(a) both of the employees concerned perform the same work under the same or similar conditions or each is

interchangeable with the other in relation to the work,

(b) the work performed by one of the employees concerned is of the same or a similar nature to that performed

by the other and any differences between the work performed or the conditions under which it is performed by

each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be

significant, and

(c) the work performed by the relevant part-time employee is equal or greater in value to the work performed by

the other employee concerned, having regard to such matters as skill, physical or mental requirements,

responsibility and working conditions.

18. Pursuant to s. 16(2) of the Act, a rights commissioner (and, on appeal, the Labour Court) may require an employer who is found

to be in breach of the Act to comply with the relevant provision (in this case s.9), and/or to pay

“compensation of such amount (if any) as is just and equitable having regard to all the circumstances”

not exceeding 2 years remuneration. Claims must be initiated within six months of the date of the alleged contravention,

or of the termination of employment, whichever is the earlier.

19. It is also relevant to note that s. 24(5) of the Education Act, 1998 provides that the terms and conditions of teachers and other

staff of a school appointed by a board of management, who are to be paid from monies provided by the Oireachtas, shall be

determined by the Minister for Education with the concurrence of the Minister for Finance.

The evidence and submissions before the Labour Court

20. The hearing took place over the course of several dates in 2011 and 2012. Ms. Boyle was represented by the INTO while the

Minister was represented by Senior and Junior Counsel. Each side filed several sets of written submissions.

21. By this time the preschool had closed. Educational policy in relation to traveller children had changed, with the emphasis now

being on inclusivity, and the Department of Education did not intend to fund preschools for such children (although it might have been

open to the committee to seek funding from other State sources). The management committee did not participate in the appeal. It

appears that Mr. Neylon had passed away and the committee had disbanded.

22. The following summary of the evidence and submissions deals only with the aspects relevant to the issues before this court, and

not, for example, with the details of the work done by Ms. Boyle and her chosen comparator.

History of employment

23. The Labour Court was informed that the preschool had been established in 1981 and Ms. Boyle had been employed there since

1989. Originally it was based in two rooms in the local community centre. When that was demolished it relocated to a different

premises. It is noteworthy that all correspondence between the Department and the management committee was sent care of Ms.

Boyle’s home address.

24. It appears from submissions filed by the Department that it was policy to grant aid to traveller preschools to a maximum of 98% of

a national school teacher’s salary for a maximum of three hours per day, five days per week for the duration of a normal school year.

It also funded 98% of the cost of school transport where that was provided.

25. Ms. Boyle was a qualified secondary teacher, rather than a primary teacher. It was stated that she was employed by the board of

management. The Department paid 98% of her salary by way of grant to the board. The grant, which was paid into a bank account in

the name of the management committee, included the amount payable by way of employer’s PRSI. It was accompanied by details of

the calculations relevant to Ms. Boyle’s pay.

26. It was noted that all part-time teachers (learning support and resource teachers) in primary schools had been paid by the grant

system until 2009, and that part-time teachers in special schools had been paid under the same system until January, 2011. The

change in relation to these categories came about on foot of a circular (Primary Circular 0088/2008) issued by the Department, which

stated that the grant system was to be altered, on a phased basis, to direct payment to the teacher. The circular made it clear that

the intention of the change was to reduce the administrative burden on schools and also help to

“ensure that the terms of the Protection of Employees (Part-Time Work) Act, 2001 are fully implemented for part-time

teachers.”

27. Teachers in these positions were thus brought “onto the payroll” as the phased changes were implemented. As part of the

process the Department required records of service in relation to individual teachers so that it could ensure that they were paid the

appropriate salary and to calculate any arrears that might be due. Thereafter, part-time teachers were paid directly by the

Department.

28. The terms and conditions of Ms. Boyle’s employment, including her salary, were set by the Department in relation to issues such

as sick leave, holidays, maternity leave, compassionate leave and entitlement to a qualification allowance.

29. Until 1992, Ms. Boyle was paid a part-time hourly rate. In that year the Department introduced a scheme establishing “Pro-Rata

Pay and Conditions for Eligible Part-Time Teachers in Special Schools and other Institutions.” This scheme was open only to part-time

teachers who were wholly or mainly dependent for their livelihood on their earnings from part-time teaching, and whose employment

history met certain criteria. The “pro-rata” aspect was by reference to the earnings of full-time primary school teachers.

30. “Eligible part-time teachers” were those who were either fully qualified teachers, or part-time teachers who, though not fully

qualified, had been sanctioned in their posts by the Department and who had at least one year’s service prior to the 1st September,

1990.

31. Of note, the terms of the scheme specifically stated that it did not provide for any amendments to the current regulations in

relation to superannuation. It was also stated that

“The employment or re-employment of a teacher under the scheme is a matter for the employer i.e. the Management

Authorities of Special Schools or other Institutions.”

32. Ms. Boyle applied for inclusion in the scheme. The response from the Department, in a letter dated the 30th September, 1992, set

out the difference in her entitlements under the existing part-time teacher rate and the new scheme. If she became an Eligible Part-

time Teacher she would be entitled to an annual salary, paid over 12 months, of £8,478.86, which would be higher than her earnings

on the part-time rate. She would not be entitled to claim Unemployment Benefit during school holidays. If she remained on the part-

time teacher rate she would be covered by the Worker Protection (Regular Part-Time Employees) Act, 1991 and would be entitled to

holiday and public holiday pay under the terms of that legislation. She could also be entitled to claim unemployment benefit during

holidays. The writer stated

“The main advantage of the EPT Scheme is the fact that you will be on a fixed annual salary which will continue to be

paid during periods of Sick Leave or Maternity Leave.”

33. Ms. Boyle opted to join the EPT scheme. Her salary was set at the first point of the scale with an allowance for her degree and

her H. Dip., and she was informed that she would remain on that point because she was not a fully qualified national school teacher.

34. In 1995, Ms. Boyle was conferred with a Master’s degree in education. She applied to the Department for an additional

qualification allowance in her salary on foot of this. It was explained to her that she already had two qualification allowances and it

was not possible to have three – however, the Master’s was substituted for one of the existing two. This entitled her to an increase

in pay which was paid to her with effect from the date of conferral of the degree.

35. In 2000, the Department issued a circular (24/00) concerned with the shortage of qualified primary school teachers. The effect of

the circular was to allow secondary teachers teaching in primary schools, in a temporary or substitute capacity, to be paid at the

rate applicable to qualified national teachers. Ms. Boyle applied to the Department to be put on the scale and was placed on the

second point. Thereafter the incremental scale was applied to her. It remained the case, however, that the Department’s grant to the

preschool was capped at 98% of what would have been payable to her had she been employed in a primary school.

36. It appears to be common case that the rates paid to teachers, including those in Ms. Boyle’s position, were fixed pursuant to a

collective agreement entered into under the auspices of the Teaching Council (a statutory body). With the introduction of

benchmarking, the value of pension entitlements paid to national school teachers were taken into consideration in fixing discounted

rates of remuneration for them.

37. After the coming into force of the Financial Emergency Measures in the Public Interest (No.2) Act, 2009, Ms. Boyle’s salary was

reduced on the same basis as that of national school teachers.

38. In November 2010, the Department sent a circular (0070/2010) to the management of all primary, secondary, community and

comprehensive schools and to VECs. This dealt with the question whether certain staff, who had not been subject to the pension

levy introduced in earlier legislation, were subject to the pay reductions under FEMPI. The issue arose because the legislation in

question defined “public servant” in different ways. The circular explained that

“Following receipt of legal advice it has now been determined that all staff employed by a recognised school or VEC

come within the definition of “public servant” solely for the purposes of the Act.

This applies regardless of the source of the money used to fund their salary, notwithstanding the fact that the Minister

does not determine their terms and conditions of employment, and irrespective of whether or not they are eligible for,

or members of, a public service pension scheme.”

39. Under the heading “Categories of staff who will now be affected”, the circular reads as follows:

“Any staff employed in a recognised school or VEC and falling into the following categories who have not already been

affected by the pay reductions introduced under the Act;

…

Teachers employed in Traveller pre-schools

….

It is important to point out that the fact that affected staff employed by recognised schools and VECs come within the

definition of “public servant” solely for the purposes of the Act does not alter their employment status in any other

respect.”

40. Evidence was given at the hearing by Ms. Boyle’s chosen comparator, a qualified primary school teacher working in an Early Start

unit of a primary school. This witness did not claim that she had entered into a contract of employment with the Minister. According

to the Minister’s affidavits she accepted that she was employed by the board of management of the primary school. Ms. Boyle denies

this. She and her representative say that the witnesses evidence was confined to the issue of like work.

Submissions to the Labour Court

41. The submissions on behalf of Ms. Boyle argued that her appointment by the management committee had been subject to sanction

by the Department; that the pre-school was subject to inspection and indeed had been evaluated by the Department Inspectorate in

2000/2001; that the Department’s Visiting Teacher for Travellers traditionally sat on the management committee; that a capitation

fee was paid in respect of children enrolled in the school; that the Department determined the number of days and hours in the school

year, and that it provided in-house training for Ms. Boyle in the same manner as for national school teachers. The management

committee had no control over her remuneration, since that was fixed by reference to the collective agreement entered into by the

Department under the tripartite structure of the Teaching Council. The additional allowances paid to Ms. Boyle in respect of her

qualifications were also within the control of the Department.

42. The appointment of Ms. Boyle is said to have been “sanctioned” by the Minister in that her eligibility for the EPT scheme depended

on her being either a qualified primary teacher (which she was not), or sanctioned by the Department.

43. It was pointed out that Ms. Boyle’s salary and allowances had been reduced in accordance with the provisions of the Financial

Emergency Measures in the Public Interest (No.2) Act, 2009.

44. It was also pointed out that, when the preschool was closing, the Department had stated that it would pay statutory redundancy

to Ms. Boyle.

45. In legal submissions, it was argued that the Minister must be deemed, under the provisions of the Act, to be the employer

because he was the person liable to pay Ms. Boyle’s wages. Reliance was placed upon the High Court decision in Catholic University

School v. Dooley and on the Employment Appeals Tribunal decision, cited in Dooley, in Sullivan v. Department of Education [1998]

E.L.R. 217. The judgment of the Supreme Court in O’Keeffe v Hickey was distinguished, on the argument that it dealt only with the

issue of vicarious liability.

46. In Dooley, which is considered in detail below, Dunne J. held that a part-time teacher whose salary was privately funded could not

choose, when nominating a comparator under the Act, a full-time teacher whose salary was funded by the State. She said for the

purposes of the Act a State funded teacher must be deemed to be an employee of the Minister.

47. The comparator chosen by Ms. Boyle was a full-time primary school teacher working in an Early Start project, or unit, in a primary

school. Such projects were designed to assist disadvantaged children at preschool level. Teachers working in pre-schools in this

programme were eligible for the superannuation scheme.

48. On the issue of redress, it was submitted that the Department had been in breach of the Act since the date of its enactment. It

was argued that the cap on compensation available under the Act was insufficient to amount to an effective deterrent and as such

was a breach of the Directive. It should therefore be disregarded. Ms. Boyle also sought an order deeming her to have been a member

of the superannuation scheme with effect from the date of commencement in 1992 of her employment as an eligible part-time

teacher.

Submissions on behalf of the Minister

49. The Minister submitted as a preliminary point that Ms. Boyle’s complaint was not well founded, because neither she nor her chosen

comparator were his employees within the meaning of the Act. She had entered into a contract with, or worked under a contract of

employment for, the management committee. There was no contract of employment between herself and the Minister.

50. It was submitted that the only exception to this principle was for the purposes of the Payment of Wages Act, 1991, in relation to

teachers “on the payroll”. Under this Act, “contract of employment” is defined in s. 1(1) as follows:

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

(b) any other contract whereby an individual agrees with another person 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) whose status be virtue of the

contract is not that of a client or customer of any profession or business undertaking carried on by the individual, and

the person who is liable to pay the wages of the individual in respect of the work or service shall be deemed for the

purposes of this Act to be the employer,

whether the contract is express or implied and if express, whether it is oral or in writing.”

51. However, it is argued that Ms. Boyle cannot avail of this exception since she was not “on the payroll”.

52. With regard to the extended part of the statutory definition dealing with employment agencies, it was submitted that this was an

exceptional example of the Oireachtas adopting an artificial interpretation. Having specifically provided for this unusual circumstance,

it was to be presumed that no other special circumstance was contemplated.

53. Reliance was placed upon the judgments in Tobin v Cashell (Unrep., Kearns J., 21st March 2000), O’Keeffe v Hickey [2009] 2 IR

302, and Crowley v Minister for Education & Ors. [1980] IR 102.

54. While it was accepted that the specific issue at stake in O’Keeffe was vicarious liability, it was submitted that the judgments of

the Supreme Court contained a broader statement of principle and that in large measure the decision rested on a finding that the

Minister was not the employer of the teacher in question. It was submitted that:

“The question as to whether a person has entered into or works under a contract of employment with another is a

question of fact and it was clear in all of the judgments in O’Keeffe, including the dissenting judgment of Geoghegan J.,

that a teacher in a national school is in a contractual relationship with the manager of the school [or, now, Board of

Management] and not with the Minister or the State.”

55. The parts of the submissions dealing with Dooley implicitly suggested that the finding by Dunne J. as to the status of the

Department-funded teachers was incorrect. Noting that the Minister had not been a party to the case, it was further argued that the

judgment was in personam rather than in rem.

56. It was asserted that the pre-school was controlled and operated by the management committee and that the Minister had no

involvement whatsoever with either the running of the school or Ms. Boyle’s employment. A grant was paid to the committee, a

private, non-State entity which engaged staff and dealt with “all employment matters” affecting those staff. In the circumstances it

was said that the department had “substantially” less control over the management committee than it would over the board of

management of a recognised school.

57. Further, it was submitted that there was no discrimination as between full-time and part-time teachers in the operation of the

superannuation scheme, since the scheme was available to both full-time and part-time national school teachers, including substitute

teachers and job-sharers. Ms. Boyle’s ineligibility for access to the scheme arose from the fact that she was not a national school

teacher.

58. Reference was made to the legislation governing the scheme. Section 2 of the Teachers Superannuation Act, 1928 permits the

Minister, with the consent of the Minister for Finance, to prepare a pension scheme “in relation to any particular class or classes of

teachers”. In relation to primary school teachers the principal scheme is provided for in the National School Teachers’ Superannuation

Scheme, 1934 (S.I. 23/1934), which defines “salary” as

“the remuneration received by a teacher from the Minister out of moneys provided by the Oireachtas for duty in a

National School…”

59. Since Ms. Boyle did not teach in a national school she did not have pensionable service. There is no pension scheme for preschool

teachers, whether part-time or full-time.

Determination of the Labour Court

60. The Labour Court gave its determination on the 4th July, 2012.

61. The Court identified the issues arising as being, firstly, whether the Minister was Ms. Boyle’s employer for the purposes of the Act

and, secondly, whether the nominated comparator was a comparable full-time employee within the meaning of the Act. The second

question turned on whether or not the chosen comparator was an appropriate comparator for the purposes of the Act, and whether

she and Ms. Boyle were engaged in the same work or work of equal value.

62. The facts of the case were summarised much as set out in paragraphs 5-9 above. The Labour Court found that the management

of the school was vested in the management committee and that Ms Boyle was under the day-to-day control of that body in the

discharge of her duties. However, it also found that it was clear that the committee exercised no control over the remuneration and

other conditions attaching to her employment, and that these matters were “exclusively controlled” by the Minister.

63. The Labour Court then went on to note the statutory definitions of the terms “employer” and “employee” already referred to,

before considering the applicable law as found by the Superior Courts in Tobin v Cashell (Unrep., Kearns J. 21st March, 2000),

Crowley v Minister for Education, O’Keeffe v Hickey and Catholic University School v Dooley.

64. In rejecting the argument advanced by the Minister that Dooley should not be applied to the case, the Labour Court found, firstly,

that the factual differences urged upon it – that in this case, the Minister paid only 98% of the salary, and that it was it was in the

first instance paid to the committee – did not undermine the application of the general principle enunciated by Dunne J. The Court

went on:

“In so far as it may have been implicit in submissions made in the course of argument that Catholic University School v

Dooley was wrongly decided, or that it should not be followed in light of earlier Supreme Court authorities, it is not open

to this Court to consider such a proposition. While that decision may appear to be at variance with the earlier authorities

it is directly in point as it deals with the same issue as that arising in this part of the instant case. It is also clear that

the earlier authorities were opened to and considered by Ms Justice Dunne. It goes without saying that this Court is

absolutely bound, by the Doctrine of Precedent, to follow and apply the rationale of a decision (or the ratio decidendi as

it is technically called) of the High Court in any case in which that decision is relevant…

…It seems to the Court that the ratio decidendi in Dooley is discernible from the passages of the judgment quoted

above. It appears to be that in a tripartite employment relationship, where the worker is engaged by and works under

the direction and control of one party, and his or her terms and conditions of employment are determined solely by

another party and funded by that party, the party who determines and funds the wages is to be regarded as the

employer for the purposes of the Act of 2001.

As in Dooley, [the Minister] determined the terms and conditions of [Ms. Boyle’s employment and [the committee] had

no hand, act or part in determining her pay or her conditions of employment. [Ms. Boyle’s] salary was set, adjusted and

reduced on the directions of [the Minister] without any input by [the committee]. Moreover, as in the case of Sullivan v

Department of Education [1998] ELR 217, which was quoted with approval by Ms Justice Dunne, the relief that [Ms.

Boyle] seeks, namely inclusion in the superannuation scheme, could only be obtained against [the Minister] and there

could be no reality in seeking to pursue that claim against [the committee].”

65. The Labour Court concluded on this issue:

“The decision in Catholic University School v Dooley is a decision of the High Court exercising a final appellate jurisdiction.

That case concerned the interpretation of the same provisions of the Act as are in issue in the instant case. The Court

believes that it is bound to follow and apply the ratio decidendi of that decision in this case. For these reasons the Court

must hold that [the Minister] is to be regarded as [Ms. Boyle’s employer for the purposes of the within claim.”

66. The Court then went on to find that the comparator and Ms. Boyle were both employed by the Minister, and that while they were

not engaged in the same work they were engaged in work of equal value.

67. Under the heading “Redress” it is noted by the Labour Court that one of the hearing dates was specifically convened for the

purpose of taking submissions on this topic. Ms. Boyle sought an order directing the Minister to enter her into the National School

Teachers Superannuation Scheme with effect from 1992, the year in which she became an “eligible part-time teacher”. The Court

considered that this was not possible, for two reasons. The first was that the Act under which the claim was brought was not

enacted until 2001, and plainly Ms. Boyle could not have accrued any entitlement under the legislation prior to its enactment.

Secondly, no complaint could be entertained unless made within six months from the date of the alleged contravention of the Act.

68. The Labour Court therefore took the view that it was limited to making an order directing the Minister to enter Ms. Boyle into the

National Teachers Superannuation Scheme with effect from the 21st September, 2008, being six months before the date upon which

she initiated her claim. The Court said that it also believed that it was appropriate to make an award of compensation “for the general

effects of the discrimination suffered by the Claimant”. It considered the sum of €10,000 to be just and equitable.

The judicial review proceedings

69. The Minister seeks an order of certiorari in respect of the determination by the Labour Court. The statement of grounds, in

summary, pleads that the Labour Court acted unfairly and ultra vires the Act, and erred in law in

a. determining that Ms. Boyle and her chosen comparator were employees of the Minister for the purpose of the Act

without any or any sufficient regard for the express terms of the Act, in the absence of any contract of employment

between the parties and despite the fact that they were employed by a separate, identified third party;

b. directing the Minister to enter Ms. Boyle in the National Teachers’ Superannuation Scheme, when she did not satisfy

the statutory requirements for it; and

c. making a finding as to general unspecified effects of discrimination suffered by Ms. Boyle, in the absence of any claim

or any evidence of loss, and awarding compensation.

70. It is pleaded that the Labour Court failed to correctly apply the doctrines of precedent in considering who the appellant’s

employer was, and considered itself bound by a High Court dictum instead of applying Supreme Court authority; that it acted

arbitrarily and unreasonably and that there was a fundamental error of law on the face of the record.

71. The statement of opposition, in summary, denies that the Labour Court fell into the errors alleged, or that its determination is

amenable to judicial review. The proceedings are asserted to be an abuse of the process because of the existence of the statutory

appeal on a point of law.

72. It is admitted that the principal claim made by Ms. Boyle in the Labour Court was that both she and her chosen comparator were

both employees of the Minister. However, it was open to that Court to find in her favour on alternative bases under s. 7(2)(a), (b) or

(c) of the Act.

The position of the Management Committee

73. The management committee was a party to and represented at the hearings before the Rights Commissioner. It did not involve

itself in the hearing of Ms. Boyle’s appeal.

74. Ms. Boyle has averred that by the time the matter reached the Labour Court there was no functioning management committee.

However, she says that at the Rights Commissioner hearing Mr. Neylon had confirmed that the committee had no say or discretion in

relation to her terms and conditions.

75. For the purpose of service of the papers relating to this judicial review application on the committee, it appears that a member of

An Garda Síochána was instructed to go to a particular address. This address was in fact the home address of Ms. Boyle. The garda

did not find anyone present. This method of service appears to have been adopted because the Minister did not know, and said that

he had no way of finding out, the identities of the members of the Committee.

Propriety of judicial review proceedings

76. The Minister says that he is entitled to invoke the judicial review jurisdiction to correct an error of law which formed the basis for

the impugned decision, relying in this regard on the authorities of Farrell v Attorney General [1998] 1 I.R. 203 and O’Donnell v

Tipperary (South Riding) county Council [2005] 2 I.R. 483.

77. The decision to pursue this avenue, as well as lodging an appeal on a point of law under the Act, is explained in the grounding

affidavit sworn on behalf of the Minister by Mr. Dalton Tattan, a Principal Officer, as follows:

“The decision impugned herein, now the subject of appeal to the High Court, is of major importance I believe having

regard for the very large number of other teachers who might seek to suggest that they are similarly positioned, not

merely to Ms. Boyle but also and importantly to her chosen comparator. As I have sought to highlight above, the

position which has long been accepted is that even in the context of a recognised school such as a primary school, the

Minister is not the employer of an individual teacher. Inherent in the determination impugned herein is the finding that

not merely was Ms. Boyle an employee of the Minister, but her chosen comparator was an employee of the Minister.

Accordingly the decision has wide ramifications not just in respect of the Act of 2001, but also in respect of other

legislation wherein the status of an employee is similarly defined and indeed possibly on an even broader basis still.

Since the appeal to the High Court on a point of law may not be taken further to the Supreme Court, I say and believe

and am advised by counsel that there is a risk that such an important issue will fall to be determined before the High

Court without any recourse being had (by either party) to a determination by the Supreme Court. In particular in this

case, there is a risk that if the matter comes before the High Court, the High Court without addressing the substance of

the issue, may adopt a similar approach to that of the Labour Court and hold that a recent High Court decision has in

fact determined the issue, rightly or wrongly, and accordingly the substance of the matter may not be revisited.”

78. The last sentence seems to refer to the principle set out in In Re Worldport Ireland Ltd (in Liquidation) [2008] IESC 68, Kadri v

Governor of Wheatfield Prison [2012] IESC 27 and Irish Trust Bank v. Central Bank of Ireland [1976-7] I.L.R.M. 50, whereby one High

Court judge should in general follow a decision by another.

79. It is argued on behalf of Ms. Boyle that the Minister is engaged in an abuse of the court’s process and attempting to bypass the

statutory scheme established by the Act.

80. Guidance on this issue is to be found in the judgment of Clarke J. in EMI Records (Ireland) Limited v The Data Protection

Commissioner [2013] IESC 34. One of the issues in the case was whether the applicant record companies were entitled to take

judicial review proceedings in circumstances where they had already applied to be joined in a statutory appeal by the notice party.

Clarke J., having referred to the well-known passage in The State (Abenglen Properties Ltd) v. Dublin Corporation [1981] ILRM 54

regarding alternative remedies, noted that the availability of an adequate alternative meant that the court was likely to exercise its

discretion against the applicant. He also quoted with approval from the judgment of Hogan J. in Koczan v Financial Services

Ombudsman [2010] IEHC 407, and concluded as follows:

“Thus the overall approach is clear. The default position is that a party should pursue a statutory appeal rather than

initiate judicial review proceedings. The reason for this approach is, as pointed out by Hogan J. in Koczan, that it must

be presumed that the Oireachtas, in establishing a form of statutory appeal, intended that such an appeal was to be the

means by which, ordinarily, those dissatisfied with an initial decision might be entitled to have the initial decision

questioned.

However, there will be cases, exceptional to the general rule, where the justice of the case will not be met by confining

a person to the statutory appeal and excluding judicial review.”

81. This approach was followed by Hedigan J. in Blackrock College v. Browne [2013] IEHC 607, a case concerning the same issue as

the instant case, in which it was held that the appellant school was correct to appeal on a point of law rather than seeking judicial

review.

82. It is clear that if the general rule were to be applied, the court should confine the Minister to the statutory appeal process.

83. I propose, in this instance, to deal with the substantive merits of the judicial review proceedings notwithstanding the fact that

there is in being an appeal under the statute.

84. I accept the legitimacy of the rationale for taking the judicial review proceedings as averred to by Mr. Tattan. The issue in the

case goes beyond a technical dispute as to the interpretation of the Act. It is a serious matter, affecting a large number of people,

with its roots in the unique Constitutional arrangements for education in this State. It seems to me that it is not necessarily an abuse

of process in these circumstances to wish to leave open to both parties the possibility of appeal. This is particularly so when the

matter was properly dealt with in the grounding affidavit and brought to the attention of the leave judge.

Submissions in the judicial review proceedings

85. The case was opened by Mr. McDonagh SC on the basis that any discrimination suffered by Ms. Boyle was not because she

worked part-time, but because she did not work in a National School. However, the fundamental issue was identified as being the

contention that she did not have a contract of employment with the Minister. The latter simply provided funding and it was open to

the school to top up her pay, change her hours or make provision for a pension. Her contract of service was with the committee.

86. The Minister relies on O’Keeffe v. Hickey and the line of authority supporting the proposition that a teacher is employed, not by

the Minister, but by the management of the school.

87. It is submitted that the correct ratio of Dooley is that the appellants in that case, being privately-funded teachers, could not use

State-funded teachers as comparators. This was because they did not have the same relationship with the school. The observations

about the Minister being the employer of the State funded teachers are said to be obiter, and/or wrong, and, in any event, applicable

only in respect of secondary teachers in a school which is recognised within the meaning of the Act. The pre-school in question was

never a recognised school within the meaning of the Education Act, 1998. The Labour Court fell into legal error in applying those

observations, instead of applying the terms of the Act and following the established authorities.

88. It is submitted that the statutory definitions of “employer” and “employee” are the only ones cognisable by the Court and that the

Directive and Framework Agreement cannot be used for the purpose of interpreting the Act contra legem.

89. The Minister also submits that the Labour Court should not have awarded compensation in the absence of proof of damage. It

was up to the claimant to present evidence if she felt that loss had accrued to her. This argument is put in terms of fair procedures –

not that the Minister was not given an opportunity to make submissions on redress, but that there had been no evidence or

submissions relevant to compensation.

90. It is also argued that the order requiring the Minister to admit Ms. Boyle to the pension scheme is contrary to law, in that she

does not meet the statutory qualifications for it.

91. Mr. McDonagh submits that the Education Act preserves the employment status of teachers.

92. In answer to a query from the court as to what redress a part-time teacher would have if the Minister set different pay rates for

full-time and part-time teachers. Mr. McDonagh said that the remedy would be against the board of management of the school.

93. However, he maintains that any detriment suffered by Ms. Boyle was not because she was part-time, but because she was not a

national school teacher. It is suggested that she is attempting to get a benefit “never intended for her” but intended for national

school teachers. She worked in a preschool, which is not primary education and which the Minister has no obligation to provide. She

was paid out of a grant given to that establishment.

94. Mr. McDonagh referred to the fact that there are early learning centres run by organisations such as Barnardo’s, whose staff are

provided with pension schemes. He says that it would not be of concern to the Minister if the management committee had paid Ms.

Boyle more than a national school teacher’s salary.

95. On behalf of Ms. Boyle, Mr. Ward SC says that there is nothing in the statement of grounds about any differentiation between

recognised schools and the preschool where Ms. Boyle taught, or about the method by which it was funded, and that these are in

any event side-issues. The device by which the money was paid as a grant was just a means to provide her salary, which was that of

an eligible part-time teacher. She had the same relationship with the Minister as a national school teacher.

96. It is submitted that the decision of the Labour Court was correct in law. Ms. Boyle had sought redress from the person who

controlled her pay and conditions, the degree of control being illustrated by the facts of the case and the documentation put before

the Labour Court on all pay-related issues up to the point where the Department accepted responsibility for the payment of

redundancy entitlements. It is noted that the Minister does not suggest that she should not have the protection of the Act, arguing

rather that in attempting to invoke its provisions against him she is aiming at the wrong target. However, even when the management

committee was functioning, there was nothing it could have done about a pension for her.

97. On the authorities, it is submitted that O’Keeffe v Hickey is concerned with the question of vicarious liability. This arose in the

historical context of the tripartite system of education in Ireland, and the conclusions of the Supreme Court in relation to the issue

before it cannot be directly applied to pay-related issues. In relation to those matters, the State regulates every aspect. In any

other employment area these issues are decided by an employer.

98. It is submitted that, when looking at any particular piece of legislation, the question to be asked is – who has control over this

issue? In Dooley, Dunne J. concluded that for the purposes of this particular Act, State funded teachers were employees of the

Minister. This could not be described as obiter, and the Labour Court was bound to apply it.

The authorities

99. Article 44(4) of the Constitution reads as follows:

The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private

and corporate education initiative, and, when the public good requires it, provide other educational facilities or

institutions with due regard, however, to the rights of parents, especially in matters of religious and moral formation.

100. The historical background, and the reasons why the provision is worded in this manner, were most recently examined by the

Supreme Court in O’Keeffe v Hickey. In that case the plaintiff had attended a national school as a child. She sued the State and the

principal of that school in respect of sexual assaults perpetrated upon her by the latter. The trial of the action in the High Court

involved rulings on a number of issues, but the only one left in the case when it came before the Supreme Court was the question

whether the State could be held to be vicariously liable in negligence for the principal’s actions.

101. All of the judgments in the Supreme Court, including the dissent of Geoghegan J., accepted the contention of the State that the

principal was employed by the manager of the school and not by the State. The majority held that in those circumstances, since the

Minister had no direct control over the principal, the principle of vicarious liability could not avail the plaintiff.

102. On the issue of the employment contract Geoghegan J. said that it was not in dispute that a teacher in a national school was in

a contractual relationship with the manager of the school.

“In other words the manager is the employer…What is certainly beyond argument is that the State is not in a

contractual relationship of any kind with the teacher including the principal.”

103. Hardiman J. said

“[The principal] was not an employee of the Minister and neither was he in any form of relationship with him which

corresponds to any of the ordinary legal triggers for vicarious liability. Their relationship –a triangular one with the

Church – is entirely sui generis, a product of Ireland’s unique historical experience.”

104. Fennelly J. observed that

“It is the manager and not the Minister who decides on which teacher to employ and the contract of employment is

between the manager and the teacher. The manager may dismiss a teacher without the sanction of the Minister.”

105. The above are passages that are, of course, relied upon by the Minister in the instant proceedings. However, the analysis in

each of the judgments in O’Keeffe of the historical and Constitutional position of the State vis-à-vis schools and school management

in the Irish system is also of relevance.

106. It was noted that in the 19th century the “managerial system” became established in Ireland, mainly through the efforts of the

Roman Catholic and Dissenting churches. The State agreed to pay for a national education system, and promulgated rules for it, but

ceded the role of management and administration at the point of delivery to the Patron and the Manager of the school - in practice,

to the churches. This system was already long established by 1937.

107. The judgments refer to the expert evidence of a Professor Coolahan, who described as “the key concern that had been fought

for and won over the years” the right of the school manager to appoint and dismiss teachers.

108. Looking at 20th century judgments dealing with the structure of the education system, Hardiman J. cited Fox v. Higgins (1912)

46 I.L.T.R. 222 as being the first to refer to a “triangular pact” involving the National Board of Education, the school manager and the

teacher. In that case, dating from 1912, a teacher who had been absent through illness was refused permission to return to work by

a new manager appointed during his absence. The rules in force at the time stipulated that a new manager was obliged to reappoint

teachers appointed by his predecessor. The teacher was held entitled to damages on the basis that the rules, although made by the

Board, created a contract between him and the manager.

109. The judgments in O’Keeffe also refer to the following passages from McEneaney v. The Minister for Education [1941] I.R. 430, in

which the managerial system was described by the then Supreme Court.

“The selection of the teacher, who should, however, have the prescribed qualifications, was left to the manager, but the

salary of the teacher was in general provided by the Board [of National Education]…

By the Rules of the Board upon a change of manager the succeeding manager was under an obligation to reappoint the

existing teachers under an agreement in writing in the same terms as the agreement by which they had previously been

appointed. Further, whilst under the Rules the provision of salary for the teacher was made in the form of a grant to the

manager and was paid to him unless he signed a request to have it paid direct to the teacher, the entire conditions as

to remuneration usually depended upon the action of the Board…

110. Reference was also made to Crowley v. Ireland [1980] I.R. 102. In that case, a number of members of the Irish National

Teachers Organisation had been held to have entered into an unlawful conspiracy to deprive children of their constitutional right to

education in furtherance of industrial action. The High Court had also found the Minister for Education liable in damages on foot of his

failure to take adequate action to ensure that education was provided to the children during the strike. The Minister’s appeal was

allowed by the Supreme Court.

111. Kenny J. referred to this State’s historical experience as being

“one of the State providing financial assistance and prescribing courses to be followed at schools; but the teachers,

though paid by the State, were not employed by and could not be removed by it. This was the function of the manager

of the school who was almost always a clergyman. So s.4 of Article 44 prescribes that the State should provide for free

primary education. The effect of this is that the State is to provide the buildings, to pay the teachers who are under no

contractual duty to it but to the manager or trustees, to provide means of transport to the school if this is necessary

to avoid hardship and to prescribe minimum standards.”

112. There appear to be two High Court judgments dealing with the position of teachers under the Act with which the instant case is

concerned.

113. Catholic University School v Dooley involved a claim under the Act brought by part-time teachers employed in CUS. That school

is a fee-paying establishment and the part-time teachers involved in the claim were paid out of privately raised funds. They sought to

compare themselves to full-time teachers in the same school whose salaries were paid by the Department, for the purpose of seeking

to be paid at the same rate. There was no dispute as to the fact that they were treated less favourably. The Labour Court upheld

their claim and an appeal on a point of law was taken to the High Court.

114. The school relied upon paragraph (b) of the definition of an employer and argued that the claimants did not have the same

employer as their chosen comparators since the school had “no hand, act or part” in the negotiations between the teachers, their

union and the Department. Various distinctions between state and privately funded teachers were set out. It relied upon a decision of

the Employment Appeals Tribunal in Sullivan v. The Department of Education [1998] E.L.R. 217, where the tribunal had found the

Department to be a teacher’s employer for the purposes of the Payment of Wages Act, 1991.

115. The claimants relied upon the analysis of the Supreme Court in O’Keeffe in making the argument that the board of management,

or the school, had to be seen as their employer for all purposes.

116. Having considered O’Keeffe, Dunne J said:

“There is no doubt that the school is the employer of the claimants. Bearing in mind the decision in O’Keeffe v. Hickey, it

appears that the school is also the employer of the chosen comparators for the purposes of issues of vicarious liability.

That decision highlights the unusual tripartite relationship between the Department funded teacher, the Department and

the school. However, the provisions of s.24 of the Education Act 1998 are also of importance. S.24 (3) makes it clear

that the task of appointing teachers funded by the State falls on the board of management of a school. S.24 (5) of the

Act makes it clear that the terms and conditions of teachers funded by the State shall be determined by the Minister,

with the concurrence of the Minister for Finance.

In a private school there will be a cohort of Department funded teachers and usually there will also be a cohort of

privately paid teachers. The paymaster for each cohort is different. In the case of O’Keeffe v Hickey to which I have

referred above, the unusual nature of the tripartite agreement was described; the Board of Management was found to

be the employer of the teacher concerned in that case which involved the question of vicarious liability although the

teacher was paid by the Department. There is no tripartite arrangement in the case of the claimants.”

117. Dunne J. went on to refer to the EAT decision in Sullivan, which concerned a dispute about the entitlement of a teacher to a

particular qualification allowance. One of the arguments made by the Department was that it was not the applicant’s employer but

merely the “paying agent”. Dunne J. quoted the following passage from the EAT’s determination:

“The tribunal does not accept that the Department is not the employer. The board of management or other managing

authority of a school may well have a role in the day-to-day running of the school and indeed in engaging teachers,

interviewing etc. The reality is that such boards of management or other managing authority in relation to state schools

have little or no role when it comes to the question of remuneration of teachers, which is a most important element and

aspect of the relationship between teachers and their employers. The tribunal considers that the role of the Department

of Education goes beyond that of “paying agent”. The Department is empowered to negotiate teachers’ salaries and

qualification allowances and makes policy decisions in relation to the type of degree which Ms. Sullivan and other

teachers have studied for in relation to the status of such degree as regards qualification allowances. The Department

has a role in the whole area of maintaining appropriate pupil/teacher ratio indirectly and regulates the number of

teachers in any particular school as in the scheme of redeployment. If ultimately redeployment in the case of any

particular teacher cannot be settled by agreement, the Minister is empowered to withhold the grant of the sum of

money which would go towards paying that particular teacher’s salary and effectively has the power to deprive a

particular teacher of his or her salary.

In all of those circumstances the Tribunal does not accept that the Department is simply a ‘paying agent’ which simply

pays out the money at the request of the state school concerned. In relation to the question of the hours worked for

which a teacher qualifies for his or her monthly salary, the school principal has a role in certifying the hours worked.

However in respect of all teachers, when it comes to the question of qualification allowances, these aspects of a

teacher’s salary involve no role for the school and are something which go to the teacher’s particular qualification and

are a constant.”

118. The tribunal considered that the fact that the school principal described him or herself as the “employer” on the monthly

certification form was not conclusive.

119. Dunne J. observed that the case of Sullivan highlighted the different and complicated employment arrangements as between

Department funded teachers and privately funded teachers. She continued:

“One wonders what relief, if any, could have been obtained by the claimant in the case of Sullivan v Department of

Education had she pursued her case against the school as opposed to the Department. It is hard to see how the Tribunal

in that case could have come to any other conclusion. The recognition of qualifications and the payment of a

qualification allowance was always a matter to be dealt with by the Department of Education, because it set the criteria

for the payment of that allowance. The case provides one small example of the different contractual arrangements that

exist between Department funded teachers and the school in which they are employed and privately funded teachers

and the school in which they are employed.’

120. She noted that on the facts in Dooley the school had no input into the contract of a State funded teacher and no control over

significant terms in such a contract. In contrast, the school did have control over those aspects of the claimants’ contracts. She

went on to find that, if the school had had control over the fixing of the terms and conditions of all the teachers in the school,

including the determination of remuneration and superannuation, there could be no objection to the chosen comparators but that was

not the case.

“The school has no hand, act or part in determining the salary and other terms and conditions of the Department funded

teacher. In determining the employer for the purpose of the legislation in relation to agency workers, the legislation

expressly provides that the party paying the worker is, for the purposes of the legislation, the employer. I think the

school is in an analogous position. I do not accept that the chosen comparators have the same type of employment

contract or relationship as the claimants with the school. To that extent, it seems to me that the Department has to be

viewed as the employer of the chosen comparators for the purpose of the legislation.”

121. Dooley was followed by Hedigan J. in Blackrock v. Browne . In that case, the claimant was, again, a privately paid part-time

teacher who sought to compare herself to a full-time Department funded teacher in relation to pay, pension and other conditions of

employment. The Labour Court found in her favour and the school appealed to the High Court.

122. Hedigan J. rejected a submission on behalf of the claimant that the passage from Dooley quoted immediately above should no

longer be regarded as good law, because of the intervening change in the relationship between the claimant and the Department

brought about by FEMPI. He noted that her salary had been reduced, and her hours increased, by direction of the Department but

held that the key rationale of Dunne J.’s decision was contained in these sentences:

“In determining the employer for the purpose of the legislation in relation to agency workers, the legislation expressly

provides that the party paying the worker is, for the purposes of the legislation, the employer. I think the school is in an

analogous position.”

123. Hedigan J. went on:

“Thus, although the school has imposed upon the respondent new terms and conditions, it still remains the party that

pays the worker i.e. the respondent. Thus, the relationship of employer and employee continues to be, in essence, as

Dunne J. found it and upon which she determined that the Departmental teacher was an incorrect comparator.”

124. I now turn to a closer examination of McEneaney v. Minister for Education, already referred to in the discussion of O’Keeffe. The

plaintiff, a teacher, claimed to be entitled to a particular increment. He was so entitled under the Department’s rules as they stood at

his appointment, but the relevant rules had been altered. The Supreme Court held that he was legally entitled to the salary and

increments set out in the rules when he was appointed, subject to the power of the Minister to reduce pay in certain circumstances.

125. Giving the judgment of the majority, Murnaghan J. commenced by stating that it had been recognised for more than a century

that the provision of primary education was “a national obligation”. For many years this duty had been entrusted to a body corporate,

created by charter, called the Commissioners of National Education in Ireland. In administering the funds granted to it by Parliament,

the Board of this body devised the managerial system.

126. After the passages referred to above, (as quoted in O’Keeffe), Murnaghan J. said:

“As between the manager and the teacher legal rights and obligations depended upon the contract to which the Board

was not a party, and it has been sought on behalf of the Department of Education to treat this contract as one in

which, as to its legal effects, the Department was in no way concerned. I use the word “Board” and “Department”

interchangeably as the Department of Education has now succeeded to all the powers of the National Board of

Education.

But the contract between the manager and the teacher does not comprise the entire relationship. Fox v. Higgins was an

action in which a teacher sued a new manager for failure to re-appoint him in accordance with the Rule made by the

Board, and Gibson J. held “that the National Board, the manager and the teacher are put together in a kind of triangular

pact” and he awarded damages against the new manager who had entered into no new contract with the teacher. So

far as the present case is concerned, as the manager did not own the school and was not carrying it on for his personal

benefit, he is in the position of a trustee of an educational trust; but at the same time the Board, acting as an

independent authority, has made published Rules by which it has made representations to both the manager and the

teachers as to the way in which it would apply the funds entrusted to it by Parliament. In so far as Parliament has left to

the Board a free discretion as to the application of these funds, the Board was legally bound by the representations

which it had made.”

127. Further on he continued:

“I have mentioned already one argument put forward by the Department to the effect that the salary was a mere

matter of bounty given to the manager, and that the contract between the manager and the teacher was a matter in

which the Department had no concern. Even if this were a tenable proposition in law it would be quite at variance with

reality, but it is not so. I have already stated my reasons for saying that a private corporation administering trust funds

could not in the face of its own representations take up such a position to the detriment of those persons who acted

upon its representations, and such a course of conduct is not open to a public Department of State.

I am equally, for the reasons I have given, unable to accept the argument that the parties by their contract meant, not

a salary upon definite terms and conditions, but only such salary as the Board should decide to grant from time to

time."

128. It may be noted that the views of the Court as to the “national obligation” to provide education should perhaps be regarded as

overly broad in the light of the decision in Crowley v. Ireland. However, Crowley does not cast doubt on the status of the findings in

McEneany relating to the Department’s obligations to pay teachers in accordance with the applicable rules.

Discussion and conclusions

129. I do not propose to discuss the issue that arose between the parties as to the applicability of the Directive in this particular

case because it seems to me that the matter can be determined as a matter of Irish law, by reference to the authorities cited above.

130. It is in the nature of a tripartite relationship that each of the three parties has a separate role to play. Much of the focus in the

authorities cited has been on the relationship between the school management and the teacher, and it is clear beyond argument that

the former holds responsibility for hiring, discipline and dismissal. These aspects are the ones that are likely to give rise to issues of

vicarious liability, since that is a concept that is related to control of an employee’s behaviour. Questions as to the responsibility of

the State for the actions of teachers have been answered in the light of this aspect of the triangular relationship.

131. It is equally clear that since long before this State came into existence, the State’s role in this country has been concerned with

the funding of that very large part of the education system that is not privately financed. However, it does not, and did not in the

past, simply hand over funds to schools to do with as they wish. It sets the rules according to which it pays the salaries of teachers,

where they are not paid out of privately sourced funds. Salaries will not be paid by the Department unless the teachers chosen by

the management have the qualifications required by the Department, and unless the allocation of posts by the Department to the

school in question permits appointments to be made. The rates of pay, including allowances for qualifications, posts of responsibility

and so on, are negotiated by the Department in a collective bargaining process under the auspices of a statutory body (the Teaching

Council) rather than being set by the individual school management bodies negotiating with individual teachers. In other words, the

Department carries out, in respect of State funded teachers, the role normally carried out by an employer with regard to payment of

employees.

132. Further, the State now concedes (in contrast to the stance taken by it in the EAT in Sullivan) that, in respect of State funded

teachers, it is to be considered the employer for the purposes of the Payment of Wages Act, 1991. It is of course the case that the

definitions in that Act are different to those under consideration, but the definition from the Payment of Wages Act (set out at

paragraph 50 above), is premised on the concept of a person who is “liable to pay the wages”. The Minister is, therefore, accepting

that he is that person. This position is now confirmed by the provisions of the Education Act, 1998 as amended, s. 24 of which

provides for the powers of the Minister in relation to teachers’ pay.

133. This, in my view, is one of the results of the unique tripartite arrangement in relation to education in this State. In relation to

teachers whose salaries are paid by the State the role of employer is, uniquely, split. Part of it is played by the management of an

individual school and part by the Department of Education. The former has the right to hire, discipline, dismiss and generally direct a

teacher in the day-to-day running of the school. The Department, on the other hand, sets the rules about, and pays, the salaries.

Since it thereby takes on what would normally be the rights of an employer in relation to pay, it follows, in my view, that it carries the

legal duties of an employer associated with pay. It has been clear since, at least, the 1940 decision of the Supreme Court in

McEneany that compliance with its own Departmental rules is one such legal obligation, and is a matter of contractual right on the

part of teachers. I cannot see that compliance with rules imposed on employers by legislation in respect of pay and pay-related

matters should be treated any differently. To hold otherwise would be to impose on school management bodies legal responsibility

where they have no legal power. The argument that it is open to individual schools to give better salaries or pension provisions if they

wish does not deal with the primary liability to pay what is lawfully due.

134. The decisions in Dooley and Browne are therefore entirely consistent with both the authorities and the factual situation of State

funded teachers.

135. It has been argued that the statement by Dunne J. that the Minister must be deemed to be the employer of Department funded

teachers should be regarded as obiter, and that the ratio of her decision was that those teachers had a different relationship with

the school. I think that this submission is misconceived. If all the teachers in the school were to be deemed to have the same

employer then, under the Act, the claimants would have had a cast-iron case. They were part-time teachers being treated less

favourably than full-time teachers. The case was not contested on the basis that the school could show objective justification for

the difference.

136. As a matter of fact, it seems that over the years the Department has administered its functions with a consciousness of these

responsibilities. The circular issued in 2008 is a good example. It states clearly that the Department was to phase in direct payment of

salaries to part-time teachers in order to ensure compliance with the very Act under consideration in this case.

137. If the Department did not act in this manner, it is difficult to imagine how the school system could function. It is not just the

sheer impracticality of making individual members of boards of management legally responsible for teachers’ payment issues in State

funded schools – if that were the law, and it was known to be such by members of school boards, it would seem unlikely that they

would be willing to act. The situation in this regard is as the Supreme Court saw it in 1940s Ireland, when it described the proposition

put forward by the Minister as “quite at variance with reality”. There is also the fact that the school boards, unlike other employers,

do not have control over the salary rates paid to their employees. It is therefore difficult to see how they could be responsible for

paying them. As Dunne J. said of the EAT decision in Sullivan, that case could hardly have been decided any other way, given the

unlikelihood that a claim could be made against the school in relation to a matter controlled by the Department.

138. Similarly, if the Department decided for some reason to set rates of pay for part-time teachers in a manner which, without

justification, treated them less favourably than full-time teachers, how could it be said that a part-time teacher’s only remedy would

be against the school?

139. The decision of the Supreme Court in McEneaney seems to me to be dispositive of the issue. In fulfilment of its Constitutional

functions, the Department of Education provides for free primary education by inter alia paying teachers salaries. It has set rules, by

virtue of which it makes representations to managers and to teachers as to how it will pay salaries, and it is bound by those

representations. It has thereby made itself responsible for ensuring the lawful payment of those salaries. It would clearly not be

acting in compliance with either its Constitutional duties or the implicit representations made by it if it adopted rules which contravene

the provisions of enactments of the Oireachtas.

140. It is true that Ms. Boyle was not employed in a school “recognised” under the Education Act, 1998. However there is no

legislation, or other rule of law, to prevent the Minister from entering into the kind of arrangement under which Ms. Boyle was

employed for over twenty years. During that time, she was paid at a rate determined by the Minister. In accordance with rules

promulgated from time to time by the Minister, she was paid qualification allowances by the Department, put on a twelve-month

salary with provision for sick leave and maternity leave, put on an incremental scale, and, ultimately, paid redundancy. While she was

still in employment the Department adopted a policy of phasing in direct payment to teachers in her position, rather than via the

management committee. All of this is consistent with the legal responsibility of an employer for pay-related issues.

141. The Minister argues that Ms. Boyle has no entitlement to a pension because she was not a national school teacher, and the

pension scheme is limited to national school teachers. It seems to me that this is a matter that goes to the appropriateness of he

remedy rather than Ms. Boyle’s substantive rights under the Act. If one accepts, as I do, that for the purposes of the Act she must

be deemed to be employed by the Minister, then what she has to do is demonstrate that she has been treated less favourably than

full-time employees who are doing comparable work within the definition of the Act. The Labour Court found in her favour on this

aspect, and that finding is not challenged in these judicial review proceedings. The mere fact that she worked in a different type of

establishment cannot in itself be a bar to redress, and the Minister would bear the burden of showing that there was objective

justification for the different treatment.

142. However, I consider that the Minister’s complaint about the redress ordered by the Labour Court is to some extent made out.

143. The powers of the Labour Court under s. 16 are to direct the employer to comply with s.9 (that is, to cease treating the part-

time employee less favourably than the comparable full-time employee) and/or to direct the payment of compensation.

144. The parties made submissions in this context as to the effects of Directive 97/81, and whether it required the Labour Court to

hold that the limitations imposed on it by the Act were such as to amount to a breach of the Directive. Ms. Boyle’s representatives

argued that she should be retrospectively admitted to the superannuation scheme with effect from the date upon which she became

an eligible part-time teacher in 1992. The Labour Court considered that it could not do that because the Act was not enacted until

2001, and because of the six-month limitation period for the making of complaints. It did not, therefore, attempt to interpret the

Directive in the manner contended for but applied the terms of the Act as it understood them to be.

145. However, I do not think that the jurisdiction to direct compliance with the terms of the Act can encompass ordering the Minister

to admit the claimant to a particular statutory scheme, the terms of which set out qualifying conditions including what appear to be a

requirement to pay contributions. This goes beyond ordering an employer to cease discriminating and comply with the Act, and I

consider it to be ultra vires the powers of the Labour Court. It seems to me that the loss suffered by the claimant in these

circumstances is more appropriately dealt with by way of compensation.

146. The power to award compensation is not limited by the terms of the Act to established special damage and I do not consider

that the Labour Court acted irrationally or unlawfully in awarding €10,000 for the “general effects” of the discrimination suffered by

Ms. Boyle. However, I propose to remit the matter to the Labour Court for reconsideration of the question of compensation, to take

account of the findings of this court as to the invalidity of the direction to admit the claimant to the superannuation scheme.

Summary

147. School teachers whose salaries are publicly funded must be deemed, for the purposes of the Protection of Employees (Part-time

Work) Act, 2001, to be employed by the Minister for Education. The Labour Court correctly found that the claimant in this case,

although not a national school teacher, or a teacher in a recognised school, was employed on the same basis as such teachers. She

was found to have been treated less favourably than full-time teachers doing comparable work. She is therefore entitled to redress

under the Act. The Labour Court is not, however, empowered to order that she be admitted to the national teachers superannuation

scheme. The matter will be remitted to the Labour Court for further consideration of the question of compensation.