PWD1827

The Adjudication Officer, in a decision dated 30th August 2017, found that the complaint was well founded and ordered payment of the allowance with effect from 25^thAugust 2016.

The case

The Appellant contends that an allowance in respect of his achievement of a PHD was not paid to him in the cognisable period for his complaint.

The parties made comprehensive submissions as regards the correct application of the law as regards the time limits for the making of complaints as set out at Section 6 of the Act.

Summary position of Respondent

The Respondent submitted that the complaint of the Complainant had been made outside the time limit for the making of complaints set out in the Act at Section 6(4). The Respondent also submitted that, if the complaint were made in time, no breach of the Act had occurred as the application for a qualification allowance by the Complainant was properly considered and determined in accordance with relevant circulars.

The Respondent submitted that the payment of qualification allowances to teachers after a Government decision abolishing allowances dated 5^thDecember 2011 was governed by Circular 008/2013 published in January 2013.

The Complainant commenced a programme of study in 2006 and was conferred with a PhD in February 2015. By letter dated 2^ndApril 2015 enclosing an application form dated 22^ndDecember 2014, the Complainant applied for payment of the qualification allowance. On that application form the Complainant confirmed that he had ceased to be a registered student ‘on any date between 5^thDecember 2011 and date of completion’. That was subsequently confirmed by the Academic institution attended by the Complainant, University College Cork. The Respondent therefore, in consideration of the facts of the Complainant’s application and the terms of the relevant circular, Respondent Circular 008/2013, concluded that the Complainant did not meet the terms of that circular and consequently did not qualify for receipt of the allowance.

The Respondent submitted that the Complainant was not actively undertaking a Phd on 5^thDecember 2011 and this meant that the Complainant failed to meet a second requirement of the Circular.

The Respondent submitted that as the Complainant failed to meet two conditions for payment of the allowance he was not entitled to its receipt and so any failure to pay the allowance to him could not be a breach of the Act.

Summary position of the Complainant.

The Complainant submitted that he had not been eligible for the teacher refund scheme because he would be entitled to receive a qualification allowance on completion of his PhD. He did not apply to that scheme at any time because of his legitimate expectation of receipt of a PhD qualification allowance.

He submitted that he was not registered for Academic year 2011 (January to December) because he was granted a leave of absence for that year. That leave of absence was sought because of family commitments, the arrival of a new Principal in the school and the work-related issues that arose for the Complainant as a consequence and the limited resources in middle management ranks due to cut backs in State funding. He did not know that his leave of absence would be used to deny him payment of the allowance.

He submitted that Circular 008/2013 is too narrow and that the Respondent’s focus on the word ‘registration’ sets an anomaly with the university requirements.

He submitted that ‘quasi legislation’ in the form of Circular 008/2013 cannot be stronger than the Payment of Wages Act, 1991.

He submitted that he was actively undertaking a course of PhD study on 5^thDecember 2011 and that the Court should take account of a range of factors particular to him in interpreting the Circular’s stipulation that in order to qualify for a qualification allowance a teacher could not cease to be registered as a student at any time between 5^thDecember 2011 and completion of his course of study.

The Law

The Act at Section 5, in relevant part, provides as follows:

• 5. (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—
  • (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

    (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

    (c) in the case of a deduction, the employee has given his prior consent in writing to it.

• (a) any act or omission of the employee, or
  • (b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

• (i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

  (ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

  (iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

  (I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

  (II) in any other case, notice in writing of the existence and effect of the term,

• (iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

  (v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

  (vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

  (vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

• • (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.

Discussion and Conclusions

The Court had some difficulty in establishing the exact nature of the Complainant’s complaint. The Complainant did not set out clearly to the Court the section of the Act which he contended was breached by the Respondent and neither did he set out clearly the contended for amount of deduction which he contended had been made.

On the basis of the submission of the Complainant the Court understands that the Complainant complains that the failure to pay him the PhD allowance constituted a deduction in accordance with Section 5 of the Act. The Court understands that the Complainant contends, as set out in the Act at Section 5(6)(a), that the wages paid to him were less than the wages that were properly payable to him. The Court further understands that the Complainant contends that this deduction was unlawful having regard to Section 5 of the Act.

There was no dispute between the parties as regards the fact that the impugned allowance was not paid to the Complainant. The parties set out to the Court two matters at issue between them. The first issue was the dispute between the parties as to whether the impugned allowance was properly payable to the Complainant. The second matter was the question of whether the complaint was, by operation of the Workplace Relations Act, 2016 (the Act of 2016) at Section 41(6), statute barred. The first issue is a matter of fact and the second issue is a matter of statutory construction. The Appellant’s position in relation to the first matter is that the allowance in question was never properly payable to the Complainant and consequently no breach of the Act could have occurred. If the Appellant is correct in that the appeal must succeed.

The Court therefore decided to consider first whether the impugned allowance was ever properly payable to the Complainant.

It was common case that, at any material time, the payment of the allowance was governed by Circular 008/2013. That circular made provision for the payment of allowances to teachers in certain circumstances following the earlier completion of a Public Service wide review of allowances. That circular provided inter alia as follows:

• In the case of persons first employed in a qualified (and for appointments after September 2010, registered) capacity in a teaching position in an Oireachtas funded post on or before 4^thDecember 2011, qualification allowances are payable in respect of qualifications acquired on or before 4^thDecember 2011. No allowances are payable should the individual acquire a further qualification regardless of the purpose of the qualifications or the date of commencement of the course of study. The sole exception to this general position arises where as at 5^thDecember 2011, a teacher in employment on that date and eligible for receipt of a qualification allowance in respect of the post they held on that date, was actively undertaking a course of study leading to a qualification allowance provided that the teacher does not cease to be a registered student on that course before its completion.

The Court has received submissions from the parties both written and oral as to whether the Complainant was actively undertaking a PhD programme in University College Cork on 5^thDecember 2011. The parties are disagreed on this point.

The Court has established that it is common case that the Complainant was not registered as a student with University College Cork from January to December 2011. This was also confirmed to the Respondent by University College Cork on 1^stMay 2015. It is common case that he did register again for the programme for the Academic year of 2012.

The Complainant has asked the Court to consider that he did not de-register from University College Cork in 2011 albeit he was not registered.

He has also asked the Court to consider that the circular was too narrow and does not take aspects of a PhD Course of individual research into account.

The Respondent submits that the circular is clear and also submits that the Complainant did, within the meaning of the circular, cease to be a registered student for a period between 5^thDecember 2011 and the completion of his course.

It is not for the Court to look behind the terms of the circular which both parties accept governs a teacher’s entitlement to receive the impugned allowance. The Complainant has asked the Court to consider that the circular is deficient in that it is too narrow. The Court considers that this submission of the Complainant implicitly accepts that the Circular as written does not allow the Complainant to quality for the payment of the impugned allowance. The Court finds that it is not open to it, in the within matter, to find fault with the circular or otherwise make findings changing the circular’s terms. The Court must confine itself to considering whether the allowance was properly payable to the Complainant at the material time. The parties are agreed that it is the terms of the circular which determine whether a teacher qualifies for payment of the allowance.

The parties have asked the Court to interpret the phrase ‘actively undertaking a course of study’ as utilised in the circular and have made divergent submissions on that point. The Court notes that the Respondent did, in 2015 upon receipt of the Complainant’s application for the allowance, invite the Complainant to supply a definite statement from his supervisor that he was actively working on his thesis in 2011 but that the Complainant failed to provide such a statement then or since.

Notwithstanding the parties’ disagreement as set out above the Court notes that the parties are agreed that the Complainant was not a registered student of the College in 2011. The Court has heard submissions as to how it should interpret and apply circular 008/2013 in this regard.

The Court however, on a plain reading of the circular, concludes that the circular clearly states that the allowance is not payable if a student ceases to be registered as a student between 5^thDecember 2011 and the completion of the course of his or her study. The Court finds, on the undisputed facts of the matter, that the Complainant did cease to be a registered student in that period and consequently must find that the allowance was not properly payable to the Complainant under the terms of circular 008/2013.

Submissions have been made to the Court by the Complainant that it should take account of the Complainant’s legitimate expectation of payment of the allowance in applying the Act to the facts of his case. The Court finds that it has no function in interpreting the Act on any basis other than its terms. The Court also finds that no submission has been made to it which would allow the Court, having established that Circular 008/2013 governs the payment of the impugned allowance and having found that the Complainant does not meet a term of that circular, to go on to set aside its own finding on the basis of the Complainant’s contended for legitimate expectation so as to conclude that the allowance was properly payable to him within the meaning of the Act. The Court observes however that no teacher who was a prospective recipient of this or any other allowance could credibly have expected payment of an allowance following the Government decision and consequent circular of 16^thDecember 2011 (circular 70/2011) abolishing all allowances. Any prospect of payment of an allowance could only have derived from circular 008/2013 when its clear terms were published in January 2013.

Having found that the allowance at issue in this case was not, at any material time, payable to the complainant the court finds that it is unnecessary for the Court to address the issues of statutory construction raised by the Appellant’s submission in relation to time limit.

Determination

The Court determines that the total amount of any wages paid to the Complainant at the material time was not less than the amount properly payable to him throughout that period. The Appeal therefore cannot succeed. The decision of the Adjudication Officer is set aside.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
CC______________________
10th July, 2018Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.