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 and Skills. 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.

 

ASTI proves ‘general’ objective grounds not valid to deny CID

Successful claims taken by the ASTI on behalf of two members proved generalised objective grounds, not specific to those teachers, could not be relied upon to deny contracts of indefinite duration (CID).

The members had been employed in the same Leinster school on successive fixed-term contracts for in excess of four years. The school argued that they were not entitled to CIDs because objective grounds to deny such had been included in their contracts. In one case, an Adjudication decision had previously awarded a CID to the teacher, but the school refused to implement the award.

In separate cases taken to the Rights Commissioner in October 2012, the ASTI argued that the objective grounds set out in each teacher’s contract related to the school’s general staffing situation and allocation but were not linked with the particular members and, therefore, did not meet the criteria demanded for a ground to be accepted as an objective ground. Specifically the ASTI argued that there was nothing (neither contract nor correspondence with the DES) to link these particular members with specific teachers on career breaks or job- sharing contracts.

The Rights Commissioner agreed with the case advanced by the ASTI and found in favour of the ASTI members, in one case stating: “I find that these objective grounds were non-specific and general in nature. I cannot concur that they were addressing a specific need, appropriate and necessary in the circumstances. [The member] was not directly linked to any of the grounds specifically.”

In both cases the Rights Commissioner stated that to appoint the teachers on a series of fixed-term contracts for what could be an indefinite period of time, pending developments that might have implications for school staffing is what the Protection of Employees (Fixed-Term Work) Act 2003 was designed to prevent. His findings quoted the Labour Court case, FTD 1232: “it is not appropriate to use fixed term contracts to avoid a contingent liability that might arise at some point in the future”.

The Rights Commissioner required the school to re-instate both teachers on contracts of indefinite duration from the date they should have been applied, and he awarded each teacher €1,000 in compensation.

ASTI secures CID – shows objective grounds not established

A Munster teacher has been awarded a contract of indefinite duration (CID) thanks to an ASTI case, which proved no written objective grounds existed to deny the contract.

The teacher was employed continuously on six fixed-term contracts between 2006 and 2012. In 2012 she was informed that her contract would not be renewed for the 2012/2013 school year. She sought the advice of her ASTI Industrial Relations Official, who advised that she should have been entitled to a CID from her fifth year in the school and assisted her in the submission of a case to Adjudication.

At the Adjudication hearing, the school stated that the teacher was covering for a leave of absence in each of the years of employment and was, therefore, not entitled to a CID. The school stated that the teacher’s contract was not renewed for the school year 2012/2013 as the teacher for whom she was covering returned to work.

The ASTI argued that the teacher had been entitled to a CID from September 2010 as this was her fifth successive year teaching in the school and no objective grounds for the refusal of a CID were set out in her written contract for that year, nor were they set out in the previous year as she had not been provided with a written contract for that period of employment.

The Adjudicator found in favour of the ASTI case and determined that the teacher had established an entitlement to a CID from September 2010.

CID win – ASTI proves ongoing need for ‘replacement’ teacher

In June 2012 the ASTI secured a Contract of Indefinite Duration (CID) for a member when a Rights Commissioner found that she could not be denied one on the grounds that she was covering for teachers on leave as she had not been teaching their classes or subjects.
The ASTI also successfully argued that Departmental allocation restrictions could not constitute objective reasons for not awarding a CID.

The teacher had been employed on seven continuous fixed-term contracts running from September 1st to August 31 each year between 2005 and 2012. In June 2012 with the support and advice of the ASTI she took a claim to the Rights Commissioner alleging that her employer was in breach of the Protection of Employees (Fixed-Term Work) Act, 2005 in failing to award her a CID.

The teachers’ contracts stated that she was employed to replace two teachers on approved leave – one on job sharing hours, the other on career break. The school maintained that this was a legitimate objective reason for offering the teacher successive fixed-term contracts rather than a CID.

The ASTI rejected this and argued that the teacher had never and did not provide cover for either of the named teachers. The teacher was not qualified to teach the subjects taught by the teachers on leave and, in fact, the school confirmed that their teaching hours been subsumed into the hours of other permanent teachers.

The ASTI made reference to previous Labour Court decisions which established that where an employer seeks to rely on objective grounds such as ‘cover for approved leave’ as the reason for a failure to offer a CID, the burden of proof lies with the employer to show that the work amounts to a genuine replacement. The ASTI further argued that the renewal of the teacher’s contracts each year proved that the teacher was employed to carry out work for which there was an ongoing need.

The Rights Commissioner found in favour of the ASTI argument, stating: “the claimant was not, in fact, replacing the two teachers named in the contracts of employment issued to the Claimant on 30th August 2011 and the Claimant was undertaking core work of the school, teaching English and Religion. The Employer therefore cannot rely on Section 9(4) of the Act.”

The school had also sought to rely on the Department of Education and Skills’ control of teaching post allocation and the requirement for schools to comply with Department Circulars as objective grounds for not awarding a CID. Referencing case law, the ASTI argued that constraints imposed by the Department of Education and Skills could not be considered objective grounds for the renewal of a fixed-term contract rather than the awarding of a CID. 

On this issue, the Rights Commissioner again agreed with the ASTI argument and found that “The Employer cannot rely on either the statutory provisions of the Education Act 1998 or the provisions of Circular 34/2009 of the Department of Education and Skills to supplant its obligations to comply with Section 9 of the 2003 Act. These provisions do not constitute objective reasons for renewing the claimant’s contract on 1st September 2011 and this contract became one of indefinite duration by operation of Section 9 (3) of the Act.”

The Rights Commissioner required the employer to issue the teacher with a Contract of Indefinite Duration effective from 1st September 2011.


ASTI appeal sees teacher reinstated

An appeal of a Rights Commissioner decision to the Labour Court resulted in a Munster teacher’s being reinstated and awarded a contract of indefinite duration (CID).

The teacher had completed four successive contracts with the school when she was informed that her contract would not be renewed in the following school year – the year in which her contract would become a CID by operation of law.

The school claimed that its allocation had been cut and the teacher’s subjects were not compatible with the school’s needs. On appeal to the Rights Commissioner, the decision of the school not to award a CID was upheld.

Supported by the ASTI, the teacher appealed to the Labour Court,contending that, in fact, the school’s needs were compatible with the teacher’s subjects, and that the non-renewal of her contract constituted an unfair dismissal.

Agreement was reached during the Labour Court hearing to allow the teacher to be awarded a CID dating from the year in which her fifth contract should have applied. She was also awarded €1,000 in financial compensation.



Appeal to adjudicator achieves CID

A recent Adjudicator’s decision found in favour of an Ulster teacher employed to cover for another teacher on secondment for four years, who was not given a CID, although the secondee had resigned.

The circumstances were that when the secondee retired in February 2012, the fixed-term teacher replacing her until that date was offered a further fixed-term contract with different objective grounds capable of compromising entitlement to a CID.

The teacher sought a CID from the Board, but was denied. Supported by the ASTI, the teacher pursued an appeal and succeeded in her claim for a CID on the basis that the objective grounds advanced by the school to deny her a CID did not feature in her fourth contract and could not now, in her fifth contract, be raised as a bar to the award of a CID.


ASTI proves teacher’s hours meet criteria for CID

An ASTI member, who was employed on eight successive fixed-term contracts between 2004 and 2011, applied to her school for a CID commencing from September 2011.

Her request was refused by the Board of Management, who claimed that she had been employed to cover for a teacher absent on secondment and, as this was set out in her contract, she did not qualify for a CID.

The ASTI supported the teacher in an appeal to the Adjudicator, arguing that the teacher for whom the ASTI member was covering was the holder of a post of responsibility working in the community and comprehensive sector and was, therefore, required to teach only 18 hours per week, as she was granted four hours per week to carry out the duties of her post.

The ASTI made the case that as the teacher was contracted to teach 22 hours and did not undertake the post duties of the absent teacher, the four additional hours were assigned to her in her own right.

The school accepted that it had secured only 18 hours in 2010/2011 and 2011/2012 by virtue of the absence of the teacher on leave, and the additional four hours were derived from other sources unconnected with the absence of the teacher on approved leave.

The Adjudicator therefore found that in 2010/2011 and 2011/2012 the teacher was employed to teach hours other than those derived from approved leave cover and she was therefore not excluded from qualification for a CID.

He ruled that the teacher was entitled to a CID and as the hours of a CID are determined by reference to the number of hours the teacher was employed on a fixed-term contract in the year prior to the award of a CID, the teacher was awarded a CID for 22 hours.