EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Micheál O'Deasmhúnaigh
PW366/2013
against the recommendation of the Rights Commissioner in the case of:
Board Of Management Of Scoil Ghleanna
Under
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O'Mahony B.L.
Members: Mr J. Browne
Mr D. McEvoy
heard this appeal at Cork on 5th December 2014
Representation:
_______________
Appellant: In person
Respondent: Chairperson of Board of Management
This case came before the Tribunal by way of an employee appealing the decision of a Rights Commissioner under the Payment of Wages Act, 1991, (ref: r-128556-pw-12/EH and r -128558-pw-12/EH) Board of Management. As the Rights Commissioner’s decision was only made against the above-named respondent, this appeal can only be against that party.
Summary of Evidence
The appellant is the Principal Teacher in the respondent’s school. He claims he is owed €1,769 in respect of a payment for supervisory duties in the academic year September 2011 to August 2012.
The appellant signed a contract in 2003 to undertake 37 hours supervision per annum on an ongoing basis. The payment for supervision is by way of a lump sum payment made towards the end of the academic year. This payment is reckonable for the calculation of pension entitlements. Claims for payment for supervision are submitted to the Department of Education & Skills (the Department) in or around late June each year. In more recent years the claim is submitted to the Department, through an online claim system (OLCS).
The appellant signed the requisite supervision contract in 2003. The appellant was responsible for making the claim for the supervision payment up to and including for the academic year 2010-2011; the secretary inputted the data and he approved it. Payment was made to him for 37 hours supervision each and every year up to and including the academic year 2010-2011. Any teacher wishing to opt out of 37 hour supervision duty must sign a document to that effect.
It was the Chairperson’s position that there were issues about the appellant’s supervision; some teachers had complained that he had claimed payment through OLCS but declined to put himself on the supervision roster. Following the appointment of a new Board of Management, responsibility for submitting the claims through OLCS to the Department was allocated to the then Deputy Principal (DP). On the instruction of Board of Management/Chairperson, DP input zero hours for the appellant when making the 2011-2012 claim for payment and this was approved by the Chairperson. The appellant only became aware of this when he contacted the Department in August 2012 enquiring as to when the 2011-2012 payment was due. The appellant’s position was that the Chairperson had neither discussed nor informed him of this instruction. The Chairperson’s position was that the appellant failed to provide documentary evidence of the hours done by him and that the limited contact details he had provided did not enable her to contact him as he spent his summers in Kerry. The claimant’s position was that he was in Cork all that summer and in the school on a number of occasions.
The claimant’s position was that there is a history of difficulties in the school. There was poor discipline and problems erupt in the school yard. The appellant was the fourth principal teacher to have been appointed to the school in a six-year period. He did not put his name on the roster but he had been responsible for organising it and he participated in supervision. Had his name been on the roster for each of the two yards then he would only have been in each yard once in every 7 days whereas not being rostered enabled him to go to the yard when issues arose and he was on the yard two to three times per week. He always supervised and as principal it was part of his duty of care.
The Chairperson’s position was that the payroll section of the Department had advised that under the terms of Circular 18/03 each school must have a roster which must include the names of all teachers who are being paid for undertaking supervision duties. If the school does not claim the maximum hours allocated to it a grant is subsequently paid to the Board of Management in respect of that deficit. When the 2011-2012 grant issued it included the 37 hours not claimed by the school in respect of the appellant and that money is in the Board of Management’s bank account.
At a Board of Management meeting in or around September 2012 it was agreed that all staff who wished to be paid for school yard supervision have to have their names on the roster. The appellant had no problem putting his name on the 2012-2013 at the request of Board of Management and he has since then been included on the roster.
A former deputy principal gave evidence that the appellant constantly refused to put his name on the roster and he did not supervise on a regular basis. She accepted that she had an ongoing grievance with the appellant over a two to three year period.
The current Deputy Principal gave evidence that the appellant had done yard duty with her, that he covered yard duty for her and others and she also saw him on yard duty with others. The Chairperson accepted that on one occasion she had met him while he was on yard duty. The INTO regards the payment of the supervision allowance as part of core pay
Determination
Circular 29/03 which deals with arrangements regarding payment of supervision monies to primary school teachers, at section 1 (which is a repeat of section 2.2 of Circular 18/03 for primary schools) provides:
“The overall responsibility for the day-to-day management of school supervision will continue to rest with the principal teacher. The terms of Circular 16/73 will continue to apply i.e the Principal teacher should organise supervision for the order and general behaviour of the pupils during school hours In particular s/he should organise and participate in the effective supervision of the pupils during breaks, lunch-breaks, assembly and dismissal.
…
3.1 A teacher undertaking supervision duties must sign a letter of contract with the Board of Management. Samples attached at Appendix A. The letter of contract must be certified by the Chairperson, Board of Managementand retained in the school for at least six years
Sample A relates to teachers committing to undertake supervision duties of 37 hours per annum on an on-going pensionable basis to retirement.
Sample A states: I hereby give a commitment to undertake supervision duties on a pensionable basis under a 37 hour per annum contract on an ongoing basis to retirement in accordance with the terms of Primary Circular 18/03. I understand that should I cease to meet this commitment, pensionability will be forfeited and I will not be allowed to re-enter such a commitment.
4 Roster for Supervision.
4.1 The Principal Teacher should prepare the roster for supervision and, where possible, this should be drawn up before the start of the school year. (emphasis added)
4.2 The roster should include arrangements for providing for supervision for short-term absences of 28 day or less … It should be submitted to the Board of Management for approval and should be retained in the school for inspection by the Department officials. (emphasis added)
4.3The roster should be posted in a prominent position within the schools that all teaching staff have access to it. (emphasis added)
Section 3 of Circular 18/03 for primary schools which is entitled “General Guidelines on Supervision” provides at 3.1:
It is a matter for the Principal Teacher, in consultation with the Board of Management to prepare the roster for supervision. Your attention is drawn to the importance of the role of the Principal teacher in managing, monitoring and participating in the supervision of the pupils during mid-morning and lunch breaks” It should be submitted to the Board of Management for approval and should be retained in the school for inspection by Department officials.
The appellant signed a contract with the respondent to undertake supervision duties for 37 hours per annum on an on-going basis. The appellant did not put his name on the supervision roster. Having regard to section 3 of Circular 18/03 for primary schools it is clear that the drawing up of the supervision roster is to be done in consultation with the Board of Management. Thus, the Board of Management must at all times have been aware that the appellant was not putting his name on the roster and accepted this every year up to and including 2010 -2011.
The Tribunal is satisfied from the evidence that the appellant did undertake supervision duties, although not on a rostered basis and he relied on his overall responsibility for supervision as the reason for not putting his name on the roster. Having had regard to the above-mentioned Circulars the Tribunal is satisfied that it is not manifestly clear from them including form the aforementioned sections thereof that the Principal must be rostered for supervision. Further, the Tribunal notes the directory nature of the language in section 4 of Circular 29/03, which deals with the roster. The Board of Management has now clarified its position and in compliance with its request the appellant has now put his name on the roster.
In light of the foregoing, the Tribunal is satisfied that the failure to make the supervision payment to the appellant constitutes an unlawful deduction from his wages under section 5 of the Payment of Wages Act 1991. Accordingly, the Tribunal sets aside the decision of the rights commissioner, ref: r-12556-pw-12, under the Payment of Wages Act, 1991, and orders that the respondent pay the appellant the sum of €1,769.00.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)