PWD1725

In this Determination the parties are referred to as they were at first instance. Hence the Department of Education and Skills is referred to as ‘the Respondent’ and Mr O’ Loughlin as ‘the Complainant’

Background

The Principal of the school in which the Complainant works left her post to take up a secondment elsewhere. The secondment commenced on 1^stSeptember 2000. This secondment terminated on 31^stAugust 2015 and she resumed duties as Principal of the school on 1^stSeptember 2015. During the absence of the Principal a number of teachers acted up in the role of Principal and Deputy Principal. The Complainant was appointed acting Principal on 1^stSeptember 2010 and received the appropriate acting allowance from that date. He ceased receiving the acting- up allowance with effect from 31^stAugust 2015.

Complainant’s case

The Complainants position is that he commenced the duties of Acting Principal on the 26^thAugust 2010 and that he ceased carrying out the duties on the 26^thAugust 2015, a total of five years and one day. He contends that as he carried out the duties for more than five years he is entitled to retain the allowance on a personal-to-holder basis in accordance with Circular 42/00. The Complainant put in evidence copies of school calendars and minutes of staff meetings which, he claims, support his contention that he held the post for five years and one day. In these circumstances it was submitted that the Complainant meets the criteria set out in Circular 42/00 for the retention of the allowance in issue on a personal to holder basis. He contends that the Respondent’s decision to discontinue the payment of the allowance constituted a contravention of section 5(6) of the Act.

Respondent’s case

According to the Respondent, the Complainant held an acting post for five years commencing on 1^stSeptember 2010 and finishing on the 31^stAugust 2015. It was pointed out that the circular provides that where a person acts in a higher post for a period in excess of five years he or she can retain the applicable allowance a personal-to-holder basis. The complainant was undertaking higher duties, and in receipt of the allowance between the dates referred to above, which was not in excess of five years. Consequently, it was submitted, the complainant did not meet that criterion specified in the Circular in issue of having held the allowance for a period in excess of five years. It was the Respondent’s case that in these circumstances the Complainant had no entitlement to retain the allowance pursuant to Circular 42/00 or otherwise. It follows, according to the Respondent, that no breach of the Payment of Wages Act 1991 had occurred in this case.

The Respondent put in evidence a number of documents signed by the complainant confirming the start and finish dates of his acting service as being from 1^stSeptember 2010 to 31^stAugust 2015, as set out above. The Court was also provided with copies of correspondence sent by the Complainant to the Respondent wherein he confirmed that he held the acting role from 1^stSeptember 2010 to 31^stAugust 2015.

In particular the Respondent relied upon a form completed by the Complainant entitled “Incremental Teacher Appointment and Re-Appointment form 2010/2011”.This form was completed by the Complainant for the purpose of obtaining the allowance now in issue. The Complainant stated on this form that he commenced in the acting role on 1^stSeptember 2010. It further contains a declaration signed by the Complainant in the following terms: -

• “I the undersigned declare that the information recorded in this document is true accurate and complete in all aspects. I understand that I am responsible for the accuracy of the information and that if I wilfully supress any information I risk loss of appointment.”

Without prejudice to its submissions in relation to the merits of the Complainant’s case, the Respondent argued that the claim was submitted outside the time limit prescribed by section 41(6) of the Workplace Relations Act 2015. In advancing this argument it was pointed out that the complaint was presented in July 2016 in circumstances where the allowance had been withdrawn effect from 31^stAugust 2015. It was its contention that the Adjudicator erred in finding that it was an ongoing breach.

The applicable law
Section 5 of the Payment of Wage Act 1991 deals with regulation of certain deductions made and payments received by employers and in particular section5(6)states;

• “Where—
  • (a) the total amount of any 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
    (b) 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”.

• “ Subject tosubsection (8),an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”

InSuperwood Holdings plc v Sun Alliance & London Insurance plc[1995] 3 I.R. 303 Blayney J quoted with approval the following passage from the decision of Budd J. inCoen v Employer's Liability Assurance Corporation[1962] I.R. 314: -

• “….the repudiating party cannot be allowed to approbate and reprobate. He cannot thus be allowed to say: ‘I deny the existence of the contract which you say exists between us, but I also rely on a term of that contract ….”

Conclusion
In all the circumstances of this case and on the evidence before it the Court is satisfied, as a matter of probability, that, the Complainant did, in fact commence in the acting post on 1^stSeptember 2010 and ceased to act in that post on 31^stAugust 2015. Consequently, he did not meet the requirements under the Circular for the retention of the allowance in issue and no contravention of the Act occurred.
Since this disposes of the claim it is unnecessary for the Court to address the question of statutory construction raised by the Respondent’s submissions in relation to the time limit.
Finding
The within appeal is allowed and the decision of the Adjudication Officer is set aside.



Signed on behalf of the Labour Court



Louise O'Donnell
JD______________________
05 October 2017Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.