A guide to dismissals for second-level teachers in Ireland.
The ASTI will endeavour to prevent a dismissal and minimise the loss to the member.
If a teacher is dismissed during the currency of a contract, the ASTI may take his/her case to the Appeal Authority, avail of a Rights Commissioner or the Employment Appeals Tribunal (provided for by the Unfair Dismissals Act 1977), look at possible means of redress under the Protection of Employee (Fixed-Term) Act, 2003 or Protection of Employee (Part-Time Workers) Act, 2001 or advise the members on local steps to resolve the situation. Should a dismissal or threatened dismissal arise, the teacher involved should immediately contact ASTI Head Office.
Procedures for the Suspension and Dismissal of Teachers
Section 24(3) of the Education Act 1998 provides for the suspension and dismissal of teachers by boards of management. Under the terms of Towards 2016 the parties undertook to review and revise existing procedures and to agree new procedures. The new procedures replace all existing disciplinary procedures for teachers.
The Appeal Procedure: Voluntary Secondary Schools
This was negotiated by the ASTI with the individual major religious superiors between the years 1937-41. The procedure was subsequently incorporated into the existing forms of contract negotiated between the CHA, CCSS and the Christian Brothers and applies to temporary and permanent contracts.
Since the enactment of the Protection of Employees (Part-Time Workers) Act, 2001 this procedure would be asserted by the ASTI as an entitlement of part-time teachers also.
Notice of Intent to Terminate Contract
Formal notice in writing of termination of the contract must be given three months prior to the end of the school term in the case of a contract of continuous employment.
Notice of the Right to Appeal
The manager must inform the teacher of the right to appeal.
Time Limits with Regard to the Appeal
The dismissed teacher or his/her union representative must appeal to the authority within a fortnight of receipt of the notice of intent to dismiss.
Unfair Dismissals Acts, 1977 - 1993
Purpose of the Act
The purpose of the Unfair Dismissals Act, 1977 is to protect employees from being unfairly dismissed from their jobs, by laying down criteria by which dismissals are to be judged unfair and by providing an adjudication system and redress for an employee whose dismissal has been found to be unjustified.
The Act applies to employees who have had a year’s continuous service. With effect from 1st Oct 1993, two or more contracts with an employer may be added together, provided the break between contracts was not greater than 26 weeks.
Burden of Proof
The onus is on the employer to prove that the dismissal was not unfair. To justify dismissal, the employer must show that it either resulted from one of the following causes or that there were substantial grounds for dismissal:
(i) The capability, competence or qualifications of the employee for the work he/she was employed to do.
(ii) The employee’s conduct.
(iv) The fact that continuation of the employment would contravene another statutory requirement.
Dismissals will be deemed to be unfair under the Act where it is shown that they resulted wholly or mainly from any of the following:
(i) The employee’s trade union membership or activities either outside working hours or at those times during working hours when permitted by the employer.
(ii) Religious or political opinions.
(iii) Race or colour.
(iv) Legal proceedings against the employer where the employee is a party or witness.
(vi) Unfair selection for redundancy.
(vii) The exercise of an employee's rights under the 1981 Maternity Act.
(viii) Sexual orientation.
(ix) Membership of the Travelling community.
Steps to Combat Dismissal
- Members, faced with dismissal or termination of employment, should inform ASTI Head Office.
- The Grievance procedure should be used to try to maintain the teacher’s employment where the school has a continuing requirement for that teacher’s subject, and the school opt not to maintain the employment contract with the teacher.
Procedure for Making a Claim of Unfair Dismissal
The employee who considers that he/she has a case under the Act must, within six months of the date of dismissal, give formal notice of his/her claim in writing on a prescribed form to either:
(i) a Rights Commissioner,
(ii) to the Employment Appeals Tribunal (if an employee or the employer has notified a Rights Commissioner in writing that he/she objects to the claim being heard by a Rights Commissioner).
Note: The Government has proposed mandatory referral to a Rights Commissioner in the first instance. For this to take effect, the Oireachtas will have to amend the statute.
Employees wishing to make a claim for redress under the Acts must give formal notice of their claim within six months of the date of dismissal. The ASTI will make this case on behalf of the member to the Rights commissioner or Employment Appeals Tribunal.
Redress for an Unfair Dismissal
The Rights Commissioner, the Tribunal or the Circuit Court can, in the event of an unfair dismissal, recommend:
(i) reinstatement in the employee’s old job;
(ii) re-engagement in the employee’s old job or in a suitable alternative job on conditions which the adjudicating bodies consider reasonable, or;
(iii) financial compensation of up to two years pay. An unfairly dismissed employee who has suffered no financial loss may be awarded up to four weeks pay.
Role of Teacher Representatives on Boards of Management
Unless there are overwhelmingly compelling reasons, teacher representatives should dissuade Boards from such a step and argue, as appropriate, for a lesser sanction.
Teacher representatives must insist on absolutely fair procedures.
Teacher representatives are encouraged to be mindful of consequences for serving non-permanent staff when a particular appointment is being proposed or alternative curricular options are being promoted.
Who Can Invoke the Terms of the Unfair Dismissals Acts 1977 - 1993
Any teacher who has not less than one years employment in a Voluntary Secondary School, a Community School or a Comprehensive School.
Dismissals in ETB Managed Schools
In the event that an ETB proposes to dismiss a teacher from its employment, the teacher has the right to an independent enquiry prior to the decision taking effect.