Monday 21 October 2019

Two VEC bosses win part of legal case over abolition of allowance

Tim Healy

TWO VEC bosses who claimed they were down thousands of euros in their salaries as a result of the abolition of a key allowance have won that part of the case before the High Court.

Mr Justice Gerard Hogan ruled the revocation of the Transport Liaison Officers Allowance in the case of the Mayo and Galway VEC CEOs was unlawful.

The Minister for Education has no power to terminate such payment in the manner in which he purported to do so and the revocation of the payments in June 2012 was unlawful, Mr Justice Hogan has decided.

The CEO of Galway and Mayo VECs are on salaries of over €100,000 each  but said a special Transport Liaison Officers Allowance which is worth €12,500  a year to them should not have been  cut - even though that part of their role ceased two years ago.

The High Court legal challenge against the Minister for Education and the State took place as the Government plan to abolish the country's  33 VEC s and replace them with sixteen new Educational and Training Boards.

Galway CEO Seosamh Mac Donncha and Mayo CEO Dr Katie Sweeney were  described in court by their counsel as "reluctant litigants"  who between them have sixty years service in the public service.

Dr Sweeney it is claimed under the reorganisation faces being "ousted" from her present position and reassigned while Mr Mac Donncha will take over the running of three counties for no extra renumeration and will face a 300km commute.

Galway CEO Seosamh Mac Donncha, An Aill Bhain, Troscai Thiar, Bearna, Co na Gaillimhe and Mayo CEO Dr Katie Sweeney of Knockaphunta Park, Westport Road, Castlebar, Co Mayo,  want the High Court to quash the  Department of Education directive  of June 2012 terminating the Transport Liaison Officers Allowance which they claim was part of their basic pay. They contend the allowances could not be witheld without a legaL basis and it will also affect their pension entitlements.

The High Court heard at issue in the case was the withdrawal of the Transport Liaison Officers Allowance, an alleged breach of the some of the provisions of the Croke Park Agreement and consultation in relation to the designations of CEOs in the new system.

The Department of Education claimed the matters have been the subject of extensive negotiations through industrial relations mechanisms and it is implementing Government policy.

Mr Justice Hogan also ruled the Minister has not violated the terms of the Croke Park Agreement in the manner in which the redeployment of VEC CEOs has been organised. The Judge said the terms of the Croke Park Agreement itself cannot give rise to a legitimate expectation because the entire agreement is predicated on the existence of sufficient flexibility and a commitment to change on the part of the employee side.

Mr Justice Hogan said the two CEOs pending the enactment of the 2013 Education and Training Board Act  2013 remain undisturbed in their posts and the only steps which have been actually taken are in the nature of forward planning. A 2012 circular on the proposed categorisation of the new training  boards, the judge said  cannot be held unlawful as a form of executive attempt to circumvent the legislative regime which obtained immediately before the coming into force of the 2013 Act.

Mr Justice Hogan said we live in "hard and stirring times" and since September 2008, the State has been grappling with an economic, fiscal and banking crisis of almost unparalleled severity.

He said the State has felt itself obliged during this period to examine the continued utility and desirability of almost all items of public expenditure with a view to ensuring that the public finances quickly return to equilibrium.

But the Judge said the validity of the termination of the TLOA so far as these proceedings must be governed entirely by legal considerations only.

Mr Justice Hogan said the allowances to which the CEO is entitled are determined by the local VEC . While it was true that the Minister must consent to the relevant employment terms including remuneration and allowances, the legislation unambiguously assigns the role of determining the terms and conditions of the CEO to the local VECs. No evidence he said had been supplied to show that any decision to terminate the allowance was taken by the relevant VECs in this case.

"Quite the contrary. It is instead clear that the decision was taken by the Minister for Education," the Judge said .

He said it was also clear from the express terms of the Vocational Education Committee (Amendment) Act 2001 the Minister has absolutely no role in terminating the allowances or otherwise varying the terms and condition of the employment of the CEOs.

"It is thus plain the purported termination of the alowoances by the Minister was unlawful", Mr Justice Hogan said

Mr Justice Hogan said the original rationale for the allowance was recognition of the extra administrative burdens which were placed on the CEOs as a result of the operation of the school transport system.

The rationale for the payment of the allowance, he said, was probably undermined over time in the actual administration of the scheme seems to have been largely carried out by support staff.

Following a review of the TLOA by the Department of Finance the Government decided in 2010 that the role of Transport Liaison Officer would cease and the responsibility for the administration of the scheme would be handed over to the actual transport providers. As a concession the payment of the TLOA continued until June 2012 when payments stopped for all VEC CEOs.

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