PWD1611

St Michaels College is a second level school that is fully funded by the Department of Education. The Complainant was employed as a teacher by the Respondent between 1984 and 2014. The Complainant alleges that the Respondent refused him access to the supervision and substitution scheme in September and October 2012 with the result that he did not get paid the supervision and substitution allowance amounting to €1,769.00 for the school year 2012/2013 with a consequent adverse effect on his pension entitlements. He submits that this refusal infringes the provisions of the Act.

Position of the Parties

The Complainant submits that he was absent from work through illness in the period during which teachers signed up for supervision and substitution work at the commencement of the academic year 2012/2013. He submits that when he returned to work the rosters for supervision and substitution had been set out on the relevant notice boards. He submits that he subsequently sought access to the scheme but was not facilitated with access. In evidence he told the Court that, as a consequence of being denied access to the scheme, he did not undertake the work of supervision and substitution during that academic year.

The Respondent submits that the school is not the employer for the purposes of the Act. It submits that the Department of Education is the paymaster in this case and that the complainant’s cause of action, if any, lies against the Department and not against the School. It cited a number of authorities in support of that contention. It further submits that the complaint is statute barred. It submits that the refusal to admit the Complainant to the scheme took place in September/October 2012 and that the complaint was filed with the Rights Commissioner on 6 September 2013 in excess of the statutory time limit of six months after the alleged infringement occurred.

Finally it submits that the Complainant did not have an entitlement to any payment in respect of supervision and substitution in the relevant leave year. Accordingly as he did not undertake the required work he did not have an entitlement to payment for such work.

Findings of the Court

The Court heard evidence from the Complainant. In it he told the Court that he did not undertake supervision and substitution duties in the relevant school year as he was denied access to the scheme by the respondent.

On the basis of that evidence the Court finds that the Complainant did not have an entitlement to payment for work that he neither contracted to undertake, nor, in fact, performed in the relevant school year. The Court accordingly finds that as no payment was due to the Complainant in respect of those duties the fact that he received no such payment cannot amount to a deduction within the meaning of the Act.

Accordingly the Court finds that a prima facie breach of the Act has not been made out in this case.

As this disposes of the matter before it the Court has not addressed the other defence grounds advanced by the respondent in this case.

Determination

The Complaint is not well founded. The appeal is not allowed. The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
CO'R______________________
9th May, 2016Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.