ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001101

Complaints for Resolution:

Date of Adjudication Hearing: 28th June 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 23^rd December 2015, the complainant referred complaints to the Workplace Relations Commission pursuant to the Payment of Wages Act and the Terms of Employment (Information) Act. The complaints were scheduled to adjudication on the 28^th June 2016. The complainant is a primary school teacher and the respondent is a private school, which includes both a primary and a secondary school.

The complainant attended the adjudication in person and was accompanied by her sister. The HR Adviser and the head of the primary school attended for the respondent.

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

Complainant’s Submission and Presentation:

The complainant outlined that she commenced employment with the respondent on the 1^st September 2003 and was given a permanent contract on the 1^st September 2004. In the intervening period, the complainant received increments in accordance with the Department of Education Salary Scale. On the 1^st September 2013, the complainant noted that she had not received the increment due and raised this with the school. The respondent later undertook to pay the increments due and wrote to the complainant on these terms on the 29^th May 2015. The increment is worth €263 per month and a total amount of €7,135 is due as of the date of the adjudication. The complainant referred to her contract of employment, which referred to her “current position” on the DES scale at point 4. The complainant outlined that she had exhausted internal processes and that the respondent had not engaged with her.

The complainant also outlined that the respondent had removed holiday entitlements. Her school year normally ended at the June public holiday, but the respondent had extended the term without agreement. She stated that there had been no notification or consultation on this change and learnt of it when it was communicated to parents. The primary school is a department within the secondary school and there is only one Board of Management and one Principal. Up to the 2014-15 school year, there had only ever been one College calendar, but this was altered to introduce a longer primary school year. The complainant outlined that she had not attended work for the additional weeks and the respondent had engaged substitute teachers. Four of her colleagues had also challenged the extension of the school year. While the possibility of extending the school year had been mentioned, the respondent had also said that this would be done on agreement.

In response to the respondent’s submission, the complainant said that she was not paid a “supervisors allowance” as stated by the respondent. She outlined that this allowance was not paid in the respondent school. It was later clarified that this second allowance may be linked to a postgraduate qualification obtained by the complainant. In relation to the staff meetings, she outlined that her contracted hours were between 8am and 3pm and it was possible to hold staff meetings before the start of school. She commented that the teachers taken on for the two weeks of June 2016 were accommodated with early morning staff meetings. The head of the junior school had scheduled staff meetings at a time when the complainant gave religious instruction to students of the school, a service for which she is paid through the respondent. A previous practice of half-day staff meetings had ceased. The complainant said that the school is a private school so the issue of “Croke Park” hours does not arise.

Commenting on the financial state of the school, the complainant said that student numbers had increased. A classroom and a staff room had recently been renovated. She had asked the respondent to provide evidence of its financial situation, but this was not forthcoming. She outlined the respondent had never told her about the decision to freeze increments and only learnt of this when the monies were not paid. No colleague had mentioned that it had been raised at a meeting and it was not referred to at the half-day staff meeting that she had attended.

The complainant concluded the adjudication by stating that the respondent was delaying paying the increments owed in order to use this as a carrot to induce the complainant and other teachers to sign up to a new contract of employment, which will presumably seek to break the link between teachers’ salaries and the Department of Education Salary Scale.

Respondent’s Submission and Presentation:

The respondent outlined that it encountered financial problems due to the recession and falling student numbers. It does not receive support from the State and has traditionally paid teachers according to points on the Department of Education scale. In response to these challenges, the respondent froze the increment due in 2014 and also extended the school year to the 17^th June 2016. This was in response to feedback from parents regarding the need to extend the school year. It also opened a pre-school. The respondent outlined that there were two school calendars, one for the junior school and a second for the senior school.

The respondent outlined that the decision to implement the freeze was communicated to staff at a meeting. The complainant did not attend such meetings as they coincided with private religion classes the complainant gave to students in the school.

The respondent submitted that the complainant’s contract of employment does not explicitly link her salary to the Department of Education’s salary scale. It had informed the complainant that the increments would be paid and backdated according. This would occur when the respondent’s finances improved and when the respondent had devised a new contract of employment, which it refers to as “a new modern and fit for purpose employment contract”. It states that the complainant is in breach of her contract of employment in not attending monthly staff meetings in order to provide religious teaching to students.

In respect of the extension of the school year, the respondent states that the complainant is contractually obliged to work in the College Calendar as set by the respondent. She did not do so, in breach of her contract. The amount of additional days required of the complainant had only been 8.5 in June 2016.

The respondent concludes by stating that the complainant’s claims are without foundation, have no basis in actual fact and “display a sense of entitlement and non-cooperation in the face of a very difficult financial situation facing the College.” It follows by stating that “we have agreed to pay the increment and refund outstanding amounts.” The respondent outlined at the adjudication that there are separate calendars for the junior and senior schools and also separate Boards of Management for the schools.

The respondent further referred to the complainant being an unsuccessful applicant for the post of principal. It was submitted that the complainant did not fulfil her “Croke Park” hours. The complainant would be paid the increments she was owed, as had been outlined in a letter of May 2015. The head outlined that she was anxious to ensure the sustainability of the school in the long term and while there had been some success in increasing numbers, this was not sufficient for the future.

Findings and reasoning:

The complainant is a longstanding employee of the respondent. Her employment commenced in 2003. She is a primary school teacher and the respondent is a private school, consisting of both primary and senior schools. The complainant asserts that she is owed pay increments. The respondent asserts that these increments are not necessarily due and also states in correspondence that it will pay the monies owed to the complainant. The second complaint relates to the extension of the school term for two weeks beyond the June bank holiday. The complainant states that this is a change to her contract of employment that she was not notified of or consulted with. She did not work this period in June 2016, shortly before the adjudication. At the hearing, the respondent indicated that it would pay the complainant’s salary for these two weeks, despite her absence.

These complaints are made pursuant to the Payment of Wages Act and the Terms of Employment (Information) Act. Taking these complaints in turn, I find that the complaint made pursuant to the Payment of Wages Act is well founded while the latter complaint is not.

It is clear from the correspondence exchanged by the parties that the respondent acknowledges that it owes the complainant the unpaid increments she seeks. This is explicitly stated by the respondent in its correspondence of the 18^th May 2015 and also referred to in December 2015 correspondence. The respondent has paid the complainant increments according to the DES scale for over a decade and it acknowledges this liability. The grounds advanced by the respondent, i.e. inability to pay, do not amount to a defence to such a claim. It follows that I find that the respondent shall pay to the complainant the amount claimed pursuant to the Payment of Wages Act, i.e. €7,135. Given the undertakings provided by the respondent that it would pay the amount due, the complainant has shown reasonable cause in relation to pursuing the complaint in December 2015.

Section 5 of the Terms of Employment (Information) Act requires that an employee be notified in writing of changes to the particulars of their employment within one month of the change having effect. The change in this case related to working time in June 2016 and was signalled in correspondence from the respondent of the 29^th May 2015. While it was not ideal that a staff member first learn of the change via the school community, I find that the letter of the 29^th May 2015 meets the respondent obligation under section 5.

At the adjudication, there were other conflicts in evidence between the parties, for example whether the complainant was in breach of her contract of employment in giving religious classes on the grounds of the school to students of the school for which she is paid via the school at the same time as staff meetings, or whether there are one or two boards of management in the respondent. It is not necessary to resolve these conflicts to determine this matter, so I do not do so.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00001514-001

I find that the complaint made pursuant to the Payment of Wages Act is well founded and the respondent shall pay to the complainant €7,135.

CA-00001514-002

I find that the complaint made pursuant to the Terms of Employment (Information) Act is not well founded.

Dated:   17^th February 2017