Issue link: https://maltatoday.uberflip.com/i/1522096
16 maltatoday | SUNDAY • 9 JUNE 2024 LETTERS & LAW Letters to the Editor Law Report Disappointment among some LSEs WHILE we acknowledge that there has been progress in recognising the role of Learning Support Educators (LSEs) in schools, we firmly believe that this recognition is long overdue, and that the role of the LSE should now be elevated to a more profession- al level. Many LSEs who have obtained their B.A. (Hons) in Facilitating Inclusive Education are highly disappointed with the terms and conditions of the new collective agreement. In our view, this agreement indicates that the pro- fession of an LSE is not valued equally with other professions but is instead considered inferior. This sentiment is reflected in various parts of the agree- ment, some of which require further clarification. For instance, although both teacher and LSE have an honours degree ob- tained by a recognised institution, an LSE with a degree can only progress to a maximum of Scale 8, whereas a teacher with a degree can progress to Scale 7. This discrepancy overlooks the substantial amount of paperwork required from LSEs, the adaptations needed beyond the three main sub- jects, and the fact that LSEs have more contact time with students than teach- ers and now Kindergarten Educators (KGEs). It also overlooks the fact that both teacher and LSE must collabora- tively work together and assume var- ious responsibilities for the wellbeing of the students. Additionally, there was no mention of granting a warrant to professional LSEs as promised dur- ing previous meetings. Moreover, an LSE who has obtained a degree and has served for over 20 years will receive an allowance of €2,000, while a teacher with 20 years of service will receive €4,000. This dis- parity implies that 20 years of service is not equally valued for everyone. There is no mention of an oppor- tunity for LSEs to advance in their career, except for the role of Head of Department (Inclusion), a position also open to teachers with 10 years of experience. Moreover, teachers with a warrant can apply for roles such as assistant head and head of school, but LSEs cannot progress to any role, when in most cases the assistant heads in charge of inclusion have no idea of inclusive education. Furthermore, LSEs with a master's degree receive only a public service allowance with- out any increase in scale. The entry requirements for the posi- tion of a supply LSE remain at a min- imum – O Level standard – contrary to the union's promises to raise these standards. LSEs are also concerned about the seniority issue, which appears to dis- advantage those who have recently obtained a degree. Some argue that LSEs who have not pursued further pedagogical education are now being favoured for seniority over those who have sought to professionalise their role. Although the Malta Union of Teach- ers (MUT) previously held meetings with us, it failed to consider meaning- ful changes to improve the work con- ditions and service quality for LSEs. The role of the LSE is still perceived as that of a babysitter and carer, often required to change nappies and assist with toileting needs when necessary. While there is a slight indication that the role in primary schools may shift towards that of a class assistant, a title that still implies subordination, no changes have been seen in secondary schools such as changing the role of the LSE to a subject LSE. This situation reflects a lack of will- ingness from both the MUT and the government to collaborate effectively and provide the highest quality, equi- table inclusive education. Meanwhile, we are still waiting for the MUT to call us for a meeting to clarify the sen- iority issue. LSEs, like many other workers, face economic pressures due to stagnant wages and rising living costs. These pressures affect their ability to focus on their job and contribute effectively to their students' education. Adequate compensation recognises the profes- sional value of educators and reduces turnover, ensuring stability and conti- nuity in the education system. Signed by a group of LSEs A plea of res judicata was rejected be- cause the merits of the case were not examined in the first instance. Despite the Maltese Courts' commitment to upholding the principle of res judicata for legal certainty, the plea is dismissed if the doctrine's elements are not ful- filled. A recent case illustrating this is PJP vs Deputy Curators of DF et al., decid- ed by Judge Jacqueline Padovani Gri- ma of the Civil Court (Family Section) on 30 May 2024. This case was initially brought by the plaintiff's mother on behalf of the plaintiff, who was a minor, against FF, appointed as curator for the heirs of DF, to challenge the paternity of her son. Upon reaching adulthood, the plain- tiff initiated a second case for the same purpose. In its decree of 15 June 2023, the Court ordered ex officio FF and his siblings, the heirs of the deceased DF, to join the second case. The claimant was instructed to notify these joinders with the initial court application and subsequent acts. The joinders were given 20 days from the notification date to submit any preliminary exceptions. FF and his siblings then raised the exception of res judicata. The plaintiff argued that the merits of the case were not addressed in the first instance, where only preliminary exceptions were decided. The plaintiff also stated that he had new evidence regarding DNA samples taken from DF while he was in the hospital. The Court went into detail about the three requisite elements of the res ju- dicata doctrine. It reiterated that the subject matter of the dispute must be identical in both cases (eadem res), the parties in- volved in both cases must be the same or represent the same interests (ea- dem personae) and the legal grounds or reasons for the action must be identical in both cases (eadem causa petendi) for the doctrine to apply. The Court emphasised that the doc- trine applies not only to issues that were debated in the first instance but also to those issues that should or could have been discussed in the first instance but were not. In its analysis, the Court quoted the judgment Francesco Aquilina vs Neg Giuseppe Gasan et decided by the Court of Appeal (Commercial Sec- tion) on 5 November 1934 where it held that in determining whether a case has already been judged the court would have to examine the issues treated in the flagged case and not simply the motivations. The Court also referred to the judg- ment Camilleri Elsa vs Briffa Joseph decided by the Court of Appeal (Infe- rior) on 24 November 2003 whereby it stated that once a court of law has not pronounced itself on the merits of an issue in the operative part of a sen- tence, the appellants had every right to safeguard their rights. Ultimately, the Court found that the second and third requisites for res judicata – eadem personae and eadem causa petendi – were not met since the first case's sentence only ad- dressed preliminary exceptions with- out hearing the merits. Thus, the plea of res judicata by the joinders to the case was dismissed. Plea of res judicata declined as merits not discussed in initial case JODIE DARMANIN Junior Associate Mifsud & Mifsud Advocates