ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004321

Complaint for Resolution:

Date of Adjudication Hearing: 17/11/2016

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 6 of the Payment of Wages Act 1991, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Attendance at Hearing:

Complainant’s Submission and Presentation:

The complainant contends that as she acted as Deputy Principal in her school from 26^th August 2010 up to 27^th August 2015, that the terms of Circular 42/00 should be applied.

The Circular states:

“where acting Principal, acting Deputy Principal, acting Assistant Principal or acting Special duties Teacher post is held for a period in excess of 5 consecutive years, the acting-up allowance may be retained on a personal basis”.

The complainant contends that the acting allowance should be retained by him on a personal to holder basis as she held the post of Acting Deputy Principal for a period of 5 years and 1 day.  

Respondent’s Submission and Presentation:

The respondent outlined the historical situation in relation to the claim.

The Principal of the school took a secondment from her post commencing 1/09/2000. Her secondment terminated on 31/08/2015 and she returned to work and resumed duties as Principal on 1/09/2015. During her absence a number of teachers acted up in the role of Principal and Deputy Principal. On 1/09/2010 the complainant’s appointment commenced as acting Deputy Principal. On 31/8/2015 the complainant ceased receiving the acting up allowance.  

The 1^st September to 31^st August of the following year is the official school year for pay purposes, and therefore the official dates for secondment and contract purposes. The official school year is set out in a broad range of Department circulars including the secondment circular 0107/2006:

“…the minimum period for which a secondment may be granted shall normally be one school year commencing on 1 September and ending on the following 31 August.”

The complainant was aware she was covering a secondment. When a school appoints a teacher to an acting position, both the teacher and the Principal or Manager of the school are required to sign an Incremental Teacher Appointment and Re-appointment form which is then sent to the Department’s payroll division in order for the teacher to receive the appropriate acting allowance. The appointment form for the complainant specifies 1/09/2010 as the date of appointment.          

The Department has advised the complainant that as Circular 42/00 states that the period of acting up needs to be in excess of 5 consecutive years, 5 years alone is not enough. Had the Principal continued her secondment beyond September 2015, and the Acting Principal continued, then she would have been entitled to retain the allowance on a personal to holder basis.

Decision:

Section 5 of the Act governs the deductions from wages. Section 5 (1) provides that deductions may not be made unless authorised by statute, a term in the employee’s contract or by prior consent of the employee. None of these provisions apply in this case.

In order for the complainant in this case to succeed, she must prove that wages “properly payable” to her were unlawfully withheld.     She argued that the non-payment of the allowance represented an unlawful deduction from wages from 19^th January 2016 to the present, that as on-going deductions from the six month time limit she was entitled to recover same.

I now consider whether wages “properly payable” to the complainant were unlawfully withheld.

Section 5 (6) provides:

“Where –

1. The total amount of wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

2. None of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

The complainant relies on the Department Circular 42/00 in support of her claim. The relevant section of the Circular is at point 2.1 as follows:

“where acting Principal, acting Deputy Principal, acting Assistant Principal or acting Special duties Teacher post is held for a period in excess of 5 consecutive years, the acting-up allowance may be retained on a personal basis”.

The Principal was on secondment for 15 years, the latter 5 years being the period the complainant held the acting post for the Teacher who acted in the Principal’s role.   I accept the complainant’s evidence that the actual school year began on 26^th August 2010. I note the Calendar for 2015/2016 begins the school year on 27^th August 2015.   Having considered the evidence in this case, I find that the complainant acted in the role of Deputy Principal for five years and one day.   I declare her complaint to be well founded and I require the respondent to pay to the complainant the arrears of wages from 19^th January 2016.

Dated:   11^th April 2017