PW286/2015

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

PW286/2015

APPEAL OF:                                                                                   

Department of Education & Skills                                                 

   - 1^st Appellant      

Loreto Abbey school Dalkey

  - 2^ndAppellant                          

against the recommendation of the Rights Commissioner in the case of:

Julie O'Brien

 -Respondent

-v-

Department of Education & Skills                                                 

Loreto Abbey school Dalkey

under

PAYMENT OF WAGES ACT 1991

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Mr. T. Taaffe

Members:        Mr. F. Cunneen

                        Mr. J. Jordan

heard this appeal at Dublin on 18th August 2016 and 19th October 2016

Representation:

Appellant:                   Mr. Peter Leonard B.L. instructed by Chief State Solicitor's Office, Osmond House, Little Ship Street, Dublin 8

Original named Defendant: A. Humphries, B Kinsella, G. Bailey

Respondent:               Mr. Desmond O’Toole .Association Of Secondary Teachers Of Ireland, Thomas MacDonagh House, Winetavern Street, Dublin 8

Background:

This matter came before the Tribunal by way of an employer appealing against a Rights Commissioner’s Decision ref: r-155114 –pw-15JOC, ref: r-155115 –pw-15JOC under the Payment of Wages Act, 1991.

18^th August 2016

At the hearing on the 18^th August 2016 two parties were present for this case: the respondent employee and a government department (the appellant). There was no appearance in relation to the original named defendant also named on the Rights Commissioner’s Decision.

Counsel for the government department informed the Tribunal that the Rights Commissioner’s Decision was made in the department’s absence as it did not receive notice of the hearing. However, the department did receive the Rights Commissioner’s Decision which found against the department. The department sought to appeal the Decision. It acknowledged that notice of the appeal appeared to have been sent to the employee but not to the school.

The employee’s representative stated that the school named on the Rights Commissioner’s Decision attended the hearing and should be allowed the opportunity to appear before the Tribunal. He outlined the circumstances in which either the school or the department could pay the wages of a teacher.   An application for an adjournment was submitted to the Tribunal on this basis and also due to the fact that the department had provided legal submissions to the employee before the hearing. The employee and her representative sought time to consider the submissions and take legal advice in relation to them.

Representation for the employee also stated that proof, in the form of a witness or a document, should be provided by the department in relation to not receiving notice of the Rights Commissioner’s hearing.

Counsel for the department submitted that the Tribunal did not have jurisdiction to hear the case as the matter did not relate to a deduction as specified by the Act. The department opposed the application to adjourn on the basis that the Rights Commissioner’s Decision found against the department rather than the school and on the basis of additional costs associated with a second hearing date.

Having considered the matter the Tribunal adjourned the hearing to allow the original parties to the Rights Commissioner’s Decision to be named on the appeal. The Tribunal stated that an appellant party is required to name the parties to the appeal and does not have the right to by-pass another party. The matter was adjourned to the 19^th October 2016 and the Tribunal required the original parties to be named in the appeal for the next date of hearing.

The hearing was in respect of an appeal by the Appellant (hereinafter referred to as “the paymaster”) against a decision of a Rights Commissioner to make an award against them in in favour of the Respondent (hereinafter referred to as “The Teacher”). The teacher’s original claim was also against her employer (hereinafter referred to as “the school” or “original named defendant”). Notice of appeal was served by the paymaster on the school at the direction of the Tribunal after it had served the Respondent only. The school did not appeal the decision.

Background:

At the outset of the hearing the school indicated that they did not intend to take part in the hearing save for conducting a watching brief.   It was agreed that (a) that while the school is the employer of the teacher, that her salary is discharged by the paymaster.

Determination:

The hearing was in respect of an appeal by the Appellant (hereinafter referred to as “the paymaster|”) against a Decision of a Rights Commissioner to make an award against them in favour of the Respondent (hereinafter referred to as the “the teacher”). The Respondent’s original claim was also against the Respondent’s employer (hereinafter referred to as “the school”). Notice of appeal was served by the paymaster on the school at the direction of the Tribunal after it had served the Respondent only. The original named defendant did not appeal the decision.

Background:

At the outset of the hearing the school indicated that they did not intend to take part in the hearing save for conducting a watching brief. It was agreed that (a) that whilst the school is the employer of the teacher that her salary is discharged by the paymaster. (b) that the terms and conditions of her employment provide for and include a Statutory requirement for her to apply for and obtain a yearly licence without which pursuant to circular 52/2013 which took effect on 30/01/2014, the paymaster reserves the right not to discharge her salary. (c) That the afore-mentioned yearly licence expired on 30/01/2014, and that the paymaster did not discharge the salary of the Respondent for the period in dispute. The agreed amount for this period being a sum of €2,493.01, and finally (d) that the teacher discharged her normal teaching duties at the school for the disputed period.

Findings:

The Tribunal has carefully considered the evidence adduced both verbal and written and the submissions made.

1. It is firstly satisfied pursuant to Section 30 of the Teaching Council Act 2001 that there is no liability on the part of the paymaster to discharge the Respondent’s salary for the disputed period and also accepts that the Respondent had adequate notice of her Statutory requirement to renew her licence. It therefore sets aside the Decision of the Rights Commissioner thus allowing the appeal of the paymaster.

2. The Tribunal has finally given consideration as to whether any liability of the school for payments of the salary of the teacher for the period for which she was unlicensed. In the absence of any evidence to the contrary it is found that the school is regularly presented with circulars for implementation by the paymaster. It is also clear to the Tribunal that the school not only implements these circulars but also supervises compliance with them. It is therefore satisfied that the school has constructive notice of the date of expiry of the teacher’s yearly licence and also of the consequences for the teacher in this regard since through their supervision they either knew or ought to have known that the teacher had not complied with her terms and conditions of employment with them.

3. Since the school both consented to and permitted the teacher to discharge her teaching duties for the disputed period on their behalf it is clear that as her employer that they are liable to discharge her agreed salary in the sum of €2,493.01, and the Tribunal so finds and determines.

    

    

   Sealed with the Seal of the

   Employment Appeals Tribunal

    

   This   ________________________

    

   (Sgd.) ________________________

        (CHAIRMAN)