Out in the field - New year, new changes
Changes in fixed term employment situations
A new year can bring changes in employment situations. Our first topic of the year is letters of appointment for fixed term and long term relieving (LTR) positions.
Some of you have moved schools and others may be entering into a further fixed term employment agreement with the same school.
Get it in writing
The key legal requirements for fixed term positions are for the school to clearly state in writing that it is a fixed term agreement, the reasons for the fixed term and how or when the employment will end. The employment may end on a specified date or after a specified period, on the occurrence of a specified event or at the conclusion of a specified project.
There must be “genuine reasons based on reasonable grounds” for the appointment to be validly fixed term rather than permanent.
Genuine reasons based on reasonable grounds
If the real reason is to exclude or limit the legal rights of the teacher, or to establish their suitability for permanent employment, these will not be considered “genuine reasons based on reasonable grounds”.
This means that an employer may not employ someone on a fixed-term agreement where the job is really a permanent one or to avoid having to go through a fair disciplinary or dismissal procedure later on should problems arise. (See ASTCA 2.2.2A and STCA 3.2.3).
Reasons can be challenged
One commonly given reason which may be challenged is that the position is funded by the board of trustees above the staffing entitlement. Such funding arrangements in isolation do not necessarily justify a positon being fixed term. If such reasons are being used for a number of fixed term teachers in the same school, it raises questions about the validity of the reason.
What is a genuine reason?
The most common “genuine reason” in schools is to provide LTR cover of more than six weeks due to a teacher’s sick, study, refreshment or maternity leave. The start and end dates must be stated. In the case of maternity or parental leave the letter may also state the possibility of the parent returning earlier than the stated end date and consequently the relieving position ending early. If it does not, the reliever will be entitled to remain until the stated end date, even if their colleague does return early.
The Ministry of Education website also makes reference to the need for a valid reason: “Your board of trustees is satisfied that there are genuine reasons related to the operational requirements of the school for the appointment of any temporary staff on fixed-term employment agreements.”
What if no reason is given?
Section 66 of the Employment Relations Act 2000 also provides that where no reason has been given, in writing, for the fixed term, or where there has been no written agreement as to how or when the agreement will come to an end, that teacher’s employment will be considered permanent.
Whether your fixed term or LTR appointment is new this year or has been rolled over from previous years have a look at your letter(s). If you have concerns or questions contact your field officer.