ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00008365

Parties:

Complainant     Anonymised Parties   Respondent

Teacher                                                           School

Representatives Conor McDonald ASTI  

Complaint(s):

Complaint/Dispute         Reference No.         Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00011151-001 05/05/2017  

Date of Adjudication Hearing: 06/09/2017 Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

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

Payment of Wages Act 1991

CA-00011151-001

  Background   The claimant stated on Monday the 7th November 2016 he was present at work for the entire day, the school was open for all teaching staff, meaningful work was carried out, students were informed not attend school. The Claimant submitted that he does not participate in Supervision and Substitution (S&S)scheme which was withdrawn at the time. The respondent deducted his pay by €180.94 in breach of Section 5 of the Payment of Wages Act 1991 The respondent submitted that the claimant is a member of the Union and participated in Industrial Action as instructed by his union on dates in October and November 2016. The deduction which is subjected of this complaint was made in respect of the 7th November 2016. The industrial action took the form of withdrawal by all Union members from Supervision and Substitution in the respondent’s location as it has employees representative from both trade unions The respondent submitted they had followed the instruction of the Department of Education and skills in respect of procedures relating to pay deductions for employees participating in the industrial action. It was further submitted that employees that wished to remain on the payroll would be required to confirm their availability for a full range of duties, including substitution and supervision from the 7th November 2016 onwards by completing a form and returning it to the principal. It was submitted that the Union had instructed its members to engage in industrial action by withdrawing from the S&S scheme as set out in Circulars 0006/2014 and 00042/2014. They, therefore, withdrew from the scheme in its entirety. Accordingly, in withdrawing from S&S scheme in its entirety the members of the union also withdrew from the opt-out arrangement. The respondent submits that the complaint is not well founded as the industrial action was taken by members of the Trade Union resulted in the school being unable to open for students and the Payment of Wages act 1991, Section 5 (5)(E) allows for deductions in respect of industrial action, whether strike action or other forms of action.  

Findings

  Both parties made written and verbal submissions at the hearing. I find that the Trade Union ballot all its members for a withdrawal from substitution and supervision duties regardless of whether the individual teachers had signed undertakings not to participate in the duties as outlined. I find that the claimant was provided with an opportunity to work on the 7th November by returning the appropriate form to the principal. I find that the claimant was not involved in the matter in dispute between the parties it remains open on whether he should have been balloted on the Industrial Action in the first place. I find the letter of the 17th October 2016 from the union directed all members of the union to withdraw from the Supervision and Substitution duties. I find that having considered all the evidence there are lessons to be learned by both parties. I find that section 5 of the Payment of Wages Act 1991 (E) (e) a deduction made by an employer from the wages of an employee, or any payment received from an employee by his employer, where the employee has taken part in a strike or other industrial action and the deduction is made or the payment has been required by the employer on account of the employee's having taken part in that strike or other industrial action,

Decision:

  Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.   I find that the complaint is not well founded and falls.  

Dated:   18th January 2018 

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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