PWD1621

This is Ms Cunningham’s appeal from a decision of an Adjudication Officer (r-153386-pw-15/MMG) dated 26 November 2015. The notice of appeal was received by the Court on 6 January 2016. Ms Cunningham (“the Complainant”) is employed as a teacher and tutor by the WWETB (“the Respondent”). She was originally employed by a predecessor of the Respondent – Waterford VEC – in 2003. Her employment transferred on 1 July 2013 to the Respondent on its establishment pursuant to the Education and Training Boards Act 2013.

The Claim

The Complainant submits that the Respondent’s refusal to pay her a salary based on the entirety of her contractual hours for the duration of her period of statutory maternity leave is an unlawful deduction within the meaning of the Payment of Wages Act 1991 (“the Act”). She is seeking payment of €16,316.04 being the amount she claims is properly payable to her under the Act.

This appeal was conjoined with a referral to the Court pursuant to section 20(1) Industrial Relations Act 1969 (CD/15/98). Both cases were heard on the same day. However, the Respondent declined to participate in the latter matter.

Decision of the Adjudication Officer

The Adjudication Officer held that the Complainant’s claim was not well-founded and should fail.

The Factual Matrix

The Complainant is employed to perform a number of different roles in different locations: at present she works 9 hours (4 + 5) per week as a teacher, 13 hours per week as a tutor and 3 hours per week as an adult education (night time) tutor. Each of these positions is respectively detailed in separate contracts of employment, three of which issued to the Complainant on 20 March 2013 and were stated to be in addition to one existing contract for 5 hours’ teaching per week at Waterford College of Further Education. Each of the Complainant’s four written contracts is stated to be a contract of indefinite duration.

The aforementioned contracts issued to the Complainant in March 2013 were issued as a consequence of discussions between the Respondent’s predecessor and the Complainant’s Trade Union, the TUI, on28 November 2012. The principal purpose of that meeting is expressed as follows in the covering letter of 20 March 2013 which accompanied the contracts:

• “In the meeting of 28^thNovember 2012 with you and your TUI representatives and CWVEC all sides were anxious to regulate your hours going forward with a consensus to 22 instruction hours per week.”

A.Teacher’s contract for 4 hours per week:

“11. Maternity/Adoptive/Carers/Parental. Force Majeure Leave

Maternity/Adoptive/Carers/Parental. Force Majeure Leave will be granted to the appointee in accordance with the arrangements authorised by the Minister for Education and Skills. The provisions of the Parental Leave Act 1998 and any subsequent Acts replacing or amending that Act will apply to Force Majeure leave.”

B.Adult education tutor’s contract for 13 hours per week:

“PAID LEAVE: The Department of Education & Skills is currently reviewing this matter. You will be notified of any decision once notification is received from the Department of Education & Skills.”

C.Adult education (night time) tutor for 3 hours per week:

“PAID LEAVE: The Department of Education & Skills is currently reviewing this matter. You will be notified of any decision once notification is received from the Department of Education & Skills.”

The Positions of the Parties

It is common case the Complainant availed herself of a period of statutory maternity leave between 18 August 2014 and 23 February 2015 during which she was paid maternity pay (less statutory maternity benefit) based only on her 9 teaching hours and excluding her 16 tutor hours.

The Respondent submits that the Complainant’s contractual entitlements are clearly and unequivocally set out in the contractual provisions recited above and that she received payment in full accordingly in respect of her contractual maternity leave entitlements. Her teaching hours’ contracts provide for payment during maternity leave in accordance with Department of Education & Skills Circular letter 009/2013. The Respondent also submits that there is currently no sanction from the Department of Education & Skills for the continuation of salary payment during maternity leave for tutors although this issue is the subject of ongoing discussions at national level between the Department and the TUI.

The Complainant submits that it was her “clear understanding” that the issue of her entitlement to full pay during statutory maternity leave was addressed at the meeting of 28 November 2012 and that she had been given an assurance that her entire teaching and tutoring hours would form the basis for her continuing salary payment during any such periods of leave that she might avail herself of. She submitted that it was on the basis of this assurance that she signed and returned the contracts that issued to her in March 2013 and with a “legitimate expectation” that that assurance would be honoured. In addition to the foregoing, she submits - by reference to the circumstances of two named tutor colleagues who received payment of their salary in full during statutory maternity leave – that there is an established custom and practice in place in the Respondent which should be considered as implying a term to that effect into her contracts of employment.

Discussion

The Court accepts fully the position in relation to the express contractual provisions in the Complainant’s written contracts as outlined by the Respondent. Only her teaching hours’ contracts are stated to be subject to the arrangements made by the Minister for Education and Skills with respect to payment during statutory maternity leave i.e. they are subject to Circular letter 009/2013. Both the Complainant’s tutor hours’ contracts state that the issue of paid leave is under review by the Department of Education & Skills. In short, the latter contracts do not make any provision for the payment of salary during statutory maternity leave, either expressly or by way of incorporation of any relevant Circular.

No evidence was proffered by the Complainant in support of her assertion that the issue of her entitlement to continuation of salary payment was addressed and agreed at the meeting of 28 November 2012. There is no reference to this issue having been discussed or agreed in the covering letter of 20 March 2013. The fact that the Complainant signed and returned the contracts in the format that they were issued to her raises questions as to the correctness of her recollection of what was discussed at the meeting of November 2012. The Court was not provided with any explanation as to why the Complainant signed and returned the contracts without expressly indicating in writing that they did not reflect the agreement she and her Trade Union had entered into if she believed that to be the case. Furthermore, the Court has been apprised of the ongoing discussions at a national level in relation to issue payment of tutors during statutory maternity leave.

The Court has also considered the Complainant’s submission that a custom and practice had been established whereby other tutors had received continuing salary payments during maternity leave. The Complainant’s representative cited the established tests for implying a term from custom and practice into a contract. She referred to a number of authorities with which the Court is very familiar:DP Refinery (Westernport) Pty Ltd v Shire Hastings[1978] 52 AJLR 43 andO’Reilly v The Irish Press[1937] 71 ILTR 194. The Court does not accept that facts as submitted by the Complainant establish that the Respondent had a practice of paying continuing salary payments in respect of non-incremental tutor hours that is certain, reasonable and notorious

The Appeal fails and the decision of the Adjudication Officer stands.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
11th July, 2016.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.