Complainant

Respondent

Anonymised Parties

A Teacher & Assistant Principal

A Government Minister

Representatives

Irish National Teachers Organisation

Chief State Solicitor's Office

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00018968-001

04/05/2018

The Complainant commenced his employment with a named primary school on 1st September 2000. The Complainant was placed on sick leave on full pay from 7th November 2016 to 1st February 2017; half pay from 2nd February 2017 to 3rd April 2017 and the Temporary Rehabilitation Remuneration rate of pay from 4th April to 7th November 2017.

The Complainant claims that the Respondent unlawfully deducted his salary by the application of sick leave entitlements during the period from 2nd February to 3rd April 2017 (half pay) and the Temporary Rehabilitation Remuneration (TRR) rate of pay from 4th April to 7th November 2017.

The Respondent rejects the claim.

This complaint was heard in conjunction with ADJ- 00014666 and ADJ- 00014668. Substantially, the same matters are complained of in all sets of proceedings. However, the Respondent in ADJ-00014666 is named as a Government Department and in ADJ-00014668 as a named primary school.

The Complainant submits that all three respondents are correct. He claims that the Government Department is the paymaster, the Board of Management of the named school processes the sick leave and the Minister is the patron of the school who nominates the Board of Management. The Complainant submits that the payment is made by the Department on instructions from the Board of Management.

The Respondent submits that for the purposes of the Payment of Wages Act claim the Department is the correct Respondent.

The Labour Court in the determination DWT1716 Minister for Education & Skills v Jacqueline Walsh refers to the Court of Appeal decision in The Minister for Education and Skills v Anne Boyle [2017] IECA 39. The Court notes:

“Hogan J in Boyle, traces in great detail the case law in relation to what he refers to as “the nature of the triangular pact identified by Gibson J in [Fox v Higgins (1912) 46 ILTR 222] over 100 years ago [that] still defies any standard conceptual analysis, at least for the purposes of the general law of contract.” (Par 78). Nevertheless, the learned Judge concludes his analysis with the observation that “the legal realities” of the relationship between a teacher/SNA, the Board of the school in which that person is employed and the Minister has two employers: the Board is the employer for certain mattes arising from an express contract with the school; the Minister is the employer for other purposes (such as for example, availing of employment protections in matters relating to pay and remuneration) based on an implied contract between the teacher and the Minister. The Boyle case specifically related to a claim under the Protection of Employees (Part-time Work) Act 2001, however, the judgment would appear, at least by analogy, to apply to all employment-related protective legislation that impacts on employees’ remuneration entitlements.This Court is clearly bound by the judgment of the Court of Appeal. Applying the reasoning of that judgment, It appears to this Court that the correct respondent for the purposes of the claims under the 1997 Act (only) is the Minister.”

Accordingly, I find that the Respondent in this case is the correct respondent.

For the reasons outlined above I find that the Minister is the correct respondent for the purposes of the claim under the Payment of Wages Act, 1991.

The Respondent submits that a substantial portion of the complaints are out of time. The Respondent submits that the statutory limits for the making of a complaint under Section 6 of the Payment of Wages Act, 1991 are set out in section 41(6) of the Workplace Relations Act 2015 which provides as follows: “Subject to subsection (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 6 months beginning on the date of the contravention to which the complaint relates.“ The Respondent further submits that Section 41(8) of the Act confers on the adjudication officer the discretion to admit a complaint for an additional period of 6 months but only “if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.” The Respondent argues that the Complaint Form was submitted to the WRC on 4th May 2018. The Respondent submits that, accordingly, the scope of the inquiry into the alleged unlawful deduction of wages is confined to the 6-month period commencing on 3rd November 2017, unless the Complainant can identify a reasonable cause to explain his failure to submit the complaint earlier. The Respondent argues that no such cause is identified in the Complaint Form.

The Respondent submits that the Adjudication Officer may only consider any unlawful deductions which are alleged to have taken place on or after 3rd November 2017. As the complaints relate to deductions which took place between 2nd February 2017 and 7th November 2017, the Respondent argues that substantial portions of the complaints are time barred.

The Respondent submits that if, despite not having done so in his Complaint Form, the Complainant can identify a reasonable cause for the delay in submission of his complaint, the Adjudication Officer may enlarge the time by a further 6-month period and thereby extend the ambit of the inquiry to cover the 12-month period commencing on 4th May 2017, However, the Respondent argues that this would nevertheless continue to exclude any deductions alleged to have been made between 2nd February 2017 and 3rd May 2017.

The Complainant submits that he was medically assessed by Occupational Health Specialists (OHS) and put on sick leave in October 2016. However, following the review conducted by the OHS the original decision was rescinded on 31st October 2017. The Complainant argues that as of 31st October 2017 any deductions made from 2nd February to 31st October 2017 became unlawful as no illness existed. The Complainant argues that the school should have notified the Government Department and the deducted amount should have been repaid to him. The Complainant argues that the deductions were cumulative for the whole period. The Complainant confirmed that he was paid fortnightly and the last payment affected by the alleged unlawful deduction was made to him on 7th November 2017. However, the Complainant rejects the Respondent’s assertion that each fortnightly payment constitutes a separate deduction and alleged contravention. In the event that it is found that this is the case the Complainant seeks an extension of time under Section 41(8) of the Workplace Relations Act in order to include the whole period when the alleged deductions occurred. The Complainant submits that in the end of October/beginning of November he met with the Chairperson of the Board of Management and was informed that the sick leave decision was rescinded. This was confirmed by letter dated 8th November 2017. The Complainant argues that the letter dated 11th December 2017 also states that the decision in respect of sick leave was overturned. The Complainant submits that he wrote to the Chairperson on 18th December 2018 seeking arrears and he hoped that the matter would be resolved. He subsequently submitted grievance in April 2018 and he referred his complaint to the WRC on 4th May 2018. In addition, the Complainant argues that the decision of the OHS was rescinded in October 2017 and he was informed of same by letter from the Chair of the Board dated 8th November 2017. Therefore, it was not possible for the Complainant to refer his complaint before that date.

The Complainant referred his claim to the WRC on 4th May 2018.

The Complainant argues that the accumulated amount of arrears constitutes unlawful deduction made on 7th November 2017. The Respondent disputes this contention and argues that, had the alleged deductions happened, they would have occurred on a fortnightly basis. Therefore, a substantial portion of the complaints are out of time.

In my consideration of both submissions, I have been guided by Section 41(6) of the Workplace Relations Act, 2015 which stipulates as follows:

(6) Subject to subsection (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.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

Both parties in the instant case cited Health Service Executive v McDermott [2014] IEHC 331.

In a case heard by the Labour Court on appeal, in The Institution of Engineers of Ireland and Richard Seaver PWD 177, the Court detailed an expansive interpretation and application of HSE V McDermott. McDermott was a Medical Consultant who claimed an unimplemented pay increase which was withheld by his employer from 2009. He lodged his claim on 16 June 2011, making reference to the cognisable period of the claim as being 1st January 2011- 30th June 2011.

The Court noted

“In Health Service Executive v McDermott [2014] IEHC 331 Hogan J considered the meaning of the term “within 6 months beginning on the date of the contravention which the complaint relates”. He held

“12. It is at this point that we can return to the construction of the relevant language of s. 6(4), namely, “within the period of 6 months beginning on the date of the contravention to which the complaint relates”. The first thing to note is that no special meaning has been ascribed to the word “contravention” by the 1991 Act, so that it must be given its ordinary, natural meaning.

13. We may next observe that the actual language of the sub-section is clear, because it is the words “contravention to which the complaint relates” which are critical. It may be accepted that every distinct and separate breach of the 1991 Act amounts to a “contravention” of that Act. If, for example, an employee is paid monthly and the employer makes unlawful deduction X in respect of salary for every month in a two year period it might be said in the abstract that there have been 24 separate “contraventions” of the 1991 Act during that period.

14. Yet the relevant statutory language takes us somewhat further, because the key question is the “date of the contravention to which the complaint relates.” In other words, time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention “to which the complaint relates.” As the EAT pointed out in its ruling on the matter, had the Oireachtas intended that time was to run from the date of the first contravention, it could easily have so provided.

15. For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time.

16. It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time.

17. It may be that when enacting s. 6(4) the Oireachtas did not fully appreciate that everything might turn for the purposes of time on the actual manner in which the particular complaint was actually framed by the employee, but the language of the sub-section really admits of no other conclusion. Nor can it be said that such a conclusion is absurd in any way.

18. In these circumstances the Supreme Court has indicated that it is not necessary or even appropriate for a court to go further on questions of statutory interpretation. As Denham J. said in Board of St. Malóga National School v. Minister for Education [2010] IESC 57, [2011] 1 I.R. 363

“As the words of s.29 [of the Education Act 1998] are clear, with a plain meaning, they should be so construed. The literal meaning is clear, unambiguous and not absurd. There is no necessity, indeed it would be wrong, to use other canons of construction to interpret sections of a statute which are clear. The Oireachtas has legislated in a clear fashion and that is the statutory law.”

Hogan J went on to consider the relevance of the decision of Keane J in Moran v. Employment Appeals Tribunal [2014] IEHC 154.He put it as follows

This point was clearly explained by Keane J. in the following terms: “I do not believe that it is necessary or appropriate for the Court to address, much less resolve, the issue of statutory construction presented by the appellant in order to dispose of this appeal. The uncontroverted evidence presented to the rights commissioner, the Tribunal and to the Court establishes that the appellant did not, as a matter of fact, present a complaint to the rights commissioner relating to a contravention of the 1991 Act alleged to have occurred on any specific date or dates within 6 months of the 17th May 2010. The appellant himself identified the contravention to which his complaint relates as an "application ... for payment of a 5% wage increase awarded by Government to [HSNs] in the [HSE] with effect from 14 September 2007."

The issue of how this Court should construe the provisions of section 6(4) of the 1991 Act for the purpose of applying it to a complaint that there has been an impermissible deduction from the wages of the appellant in each of the 6 months immediately prior to the presentation by him of that complaint (specifically, a deduction in the form of a refusal to include in that payment an increase to which the complainant claims to have become entitled some years previously) is a hypothetical issue as far as the complaint actually presented by the appellant in this case is concerned.

As Carroll J. confirmed in the case of Mhic Mhathuna v. Ireland [1989]1 I.R. 504 (at 510), the Court cannot take into account arguments based on assumptions or hypotheses outside the facts and circumstances of the action or, in this instance, the appeal - before the Court.

If the appellant is correct in his contention concerning the proper construction of section 6(4) of the 1991 Act, then it is open to him to present a complaint to a rights commissioner relating to any alleged deduction in the wages paid to him on any specified date (or dates) within the period of 6 months beginning on the date of the first such payment. If he is incorrect in that contention, any such complaint will fail. But it would be wrong for the Court to seek to anticipate the outcome of such a complaint before the rights commissioner or the Tribunal for the purpose of the present appeal, just as it would be wrong for this Court to conduct this appeal as though the applicant had actually presented such a complaint to the rights commissioner or to the Tribunal in this case.”

The Court in Seaver applied the law as set out in Mc Dermott and considered just how the complaint was framed in the original complaint to the WRC and held that:

As framed, the Court finds that the complaint has its origins in an action of the respondent that commenced in 2009. The Complaint was not submitted to the WRC until May 2015, some six years later …..The Court finds that as framed it must decide that it was commenced outside the statutory time limit for the bringing of complaints under the Act.

I note that in the instant case the Complainant in his WRC referral form under the heading “What was the date of the deduction” stated “07/11/2017”. He then stated that the amount of deduction was €42,000. In the “Complainant specific detail or statement” the Complainant elaborated to state: “The respondent unlawfully deducted from the claimant his salary during the period of the 2nd February, 2017 to the 7th November, 2017 by paying him at the incorrect rate of pay”.

I find that the Complainant was paid fortnightly and therefore, the alleged contraventions would have occurred on a fortnightly basis from 2nd February 2017 until 7th November 2017. The Complainant submitted his complaint to the WRC on 4th May 2018. Therefore, the cognisable period for the purposes of this claim is from 5th November 2017 to 4th May 2018.

I have considered the Complainant’s application to extend the statutory time limit in this case. As an Adjudication Officer, I am bound to work within the statutory time limits pertaining to Section 41 of the Workplace Relations Act, 2015. The Act gives no guidance as to the type of circumstances that can constitute reasonable cause and it would appear to be a matter of fact to be decided by the Adjudication Officer in each individual case.

The jurisprudence in respect of the concept of ‘reasonable cause’ is summarised in Salesforce.com v Alli Leech EDA1615 wherein the Labour Court stated:

“The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -

Ø  It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

In that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello Costello J. (as he then was) stated as follows:

Ø  The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.

It clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.”

The Complainant argued that, although he did not agree with the decision of the Occupational Health Specialists, he accepted that the Respondent was bound by their decision. He asserts that only when the OHS decision was reverted, and by virtue of the decision to revert, the deductions transmuted into unlawful deductions. The Complainant further argued that, as a consequence he could not have referred his claim to the WRC before he was made aware that the initial OHS decision was rescinded and this did not happen until 8th November 2017. I have concluded that the Complainant has established a causal connection between the factors relied upon by him and the delay in presenting the within claim. Accordingly, I decide that the Complainant has succeeded to adequately explain and provide a reasonable cause for the delay.

Having considered the evidence available to me and the parties’ submissions I grant the extension of time. Consequently, the cognisable period for the purpose of this claim is from 5th May 2017 to 4th May 2018.

The Complainant submits that he has been employed by the named school since September 2000. The Complainant asserts that the Respondent made unlawful deductions from his salary during the period from 2nd February 2017 to 7th November 2017 by paying him at the incorrect rate of pay. The Complainant argues that this has resulted not only in a loss of salary but also pension contributions. The Complainant submits that he received correspondence from the Chairperson of the Board of Management, Mr F on 8th November 2017 noting that the previous medical evidence has been rescinded which effectively overruled the earlier medical evidence. This meant that the basis of the half-pay and Temporary Rehabilitation Remuneration (TRR) was also rescinded and accordingly the Complainant’s pay should not have been deducted and pension contributions should have been made during the period referred to. The amount of the unlawful deduction claimed was given by the Complainant originally as €42,000. The Complainant subsequently stated at the hearing that, in fact, it was €51,000.

In cross-examination the Complainant accepted that the Respondent is bound by the OHS’s medical opinion. He stated that “the school was right” to take the decision to place the Complainant on the sick leave. However, he argues that once the decision was rescinded he had a legitimate expectation to receive arrears. When prompted by the Respondent, he confirmed that nobody informed him that his pay would be reinstated but he formed his own opinion in that regard.  

The Respondent submits that there has been no deduction from wages.

The Respondent submits that under Section 24 of the Education Act the Minister for Education & Skills with the concurrence of the Minister for Public Expenditure & Reform is authorised to determine the terms and conditions of employment, including remuneration, for teachers and other school staff, who are paid out of monies provided by the Oireachtas. The Functions of the Minister are as set out in Section 7 of the Education Act, 1998, as amended. The employment terms & conditions for teachers, as determined and approved by the Ministers are therefore statutorily underpinned by Section 24 of the Education Act. Section 24(3) provides that:

“the terms and conditions of employment of the teachers and other staff of a recognised school, appointed by the board and who are, or who are to be, remunerated out of monies provided by the Oireachtas, shall be determined from time to time by the Minister, with the concurrence of the Minister for Public Expenditure and Reform.”

Section 24(6) contains the relevant remuneration provision:

“Where all or part of the remuneration or superannuation, or both, of the Principal, a teacher or another member of staff of a recognised school is paid or is to be paid out of monies provided by the Oireachtas, such remuneration or superannuation shall be determined from time to time by the Minister, with the concurrence of the Minister of Public Expenditure and Reform.”

The Sick Leave Scheme and the Occupational Health Scheme, which are at the centre of this dispute, exist pursuant to statutory authority under Section 24 of the Education Act, but also in the case of the sick leave scheme under statutory instruments promulgated by the Minister for Public Expenditure and Reform, in exercise of his statutory authority. The employment terms and conditions for teachers employed in grant aided teaching posts are of general application to all teachers appointed to such posts, including the Complainant.

In respect of the Sick Leave Scheme the Respondent submits that Section 58B of the Public Service Management (Recruitment and Appointments) Act, 2004 as amended, provides the Minister for Public Expenditure and Reform (DPER) with the power to make regulations that set out the specific details of a Public Service Sick Leave Scheme. The relevant Ministerial Regulations are contained in the Public Service Management (Sick leave) Regulations 2014 (S.I. 124 of 2014) and in the Public Service Management (Sick Leave) (Amendment) Regulations 2015 (S.I. 384 of 2015). The Respondent submits that with minor local variations this unified sick leave scheme applies across the public service, including State-funded teaching positions. The scheme incorporates paid sick leave (full pay and half pay), Temporary Rehabilitation Remunerations (TRR) and unpaid sick leave. The Respondent submits that the sick leave for teachers is set out in Chapter 3 of “Terms and Conditions of Employment for Registered Teachers in recognised Primary and Post Primary Schools”. All teachers availing of sick leave must do so under the terms of the Sick Leave Scheme.

The Respondent submits that an Occupational Health Service (OHS) was put in place to provide employers with health advice in relation to employees in posts which are Oireachtas funded.

The Respondent submits that in light of certain behavioural issues in the workplace the Complainant was referred to the OHS in 2016. By letter dated 26th October 2016 Dr S of the OHS indicated that she was not “in a position to stand over the Complainant’s current medical fitness for work”. On 8th March 2017 she furnished the Board of Management with a further Occupational Health Assessment wherein she opined as follows:

“[the Complainant]’s medical assessment has revealed an unmodifiable medical condition. In my opinion this medical condition impairs [the Complainant]’s ability to perform his duties as a primary school teacher safely. It is my opinion, based on the assessment that [the Complainant] is medically unfit, long term, for his role as a primary school teacher.”

In accordance with the terms of the Sick Leave Scheme, the Complainant received full pay from 7th November 2016 to 1st February 2017; half pay from 2nd February to 3rd April 2017; and the TRR rate of pay from 4th April to 7th November 2017. The Respondent submits that, following a review of additional medical evidence provided by the Complainant to the OHS, by letter dated 31st October 2017, Dr R of the OHS indicated that there was “insufficient medical evidence to establish that this gentleman is disabled or unfit for work.” Accordingly, the Complainant ‘s absence ceased to be recorded as sick leave thereafter. The Complainant remains absent on Administrative Leave to allow to revisit outstanding issues and serious concerns raised prior to the sick leave and matters that have arisen in the interim.

The Respondent asserts that the statutory terms and conditions of employment around sick leave and sick pay were applied in accordance with the Sick Leave Scheme, with the Respondent having had due regard to the medical assessment of the Occupational Health Specialists. Without prejudice to the above should the view be formed that application of the statutory sick pay regime does amount to a deduction from wages for the purposes of the Act, the Respondent would rely upon Section 5 of the Payment of Wages Act which provides that a deduction “required or authorised to be made by virtue of any statute or any instrument under statute” is not an unlawful deduction. In this regard the Respondent cited WRC decision ADJ-00007689. The Respondent argues that in the instant case Chapter 3 of Edition 2 of the Terms & Conditions book was issued pursuant to the Education Minister’s statutory authority to determine the terms and conditions of employment for teachers (including remuneration) as contained in Section 24 of the Education Act 1998, and is consequently “an instrument of statute” and therefore any alteration made to salary pursuant to same cannot be deemed to be unlawful deduction for the purposes of the Payment of Wages Act. The Respondent also relies upon PWD1819 Department of Defence v Brendan Lee where the Labour Court determined that the deduction at issue was applied pursuant to an instrument made under statute and therefore could not constitute an unlawful deduction for the purposes of the Act. The Respondent argues that the Terms & Conditions of employment for teachers are also determined pursuant to a statutory ministerial authority, which exists in the present case under Section 24 of the Education Act.

The Respondent further refers to the Rights Commissioner’s decision 150398-pw-14 (Monica Campion v the Department of Education & Skills) where the Rights Commissioner accepted the Minister’s authority with regard to payment of allowances. This decision was subsequently upheld on appeal by the Employment Appeals Tribunal (PW193/2015). The Respondent contends that the LRC, WRC and the Labour Court have all found that the terms and conditions of teacher employment, as published by the Department of Education, including remuneration, are instruments made under statute, as they have been promulgated pursuant to the ministerial authority contained in Section 24 of the Education Act.

The Respondent also cited ADJ-00011094 Physics & Maths Teacher and a Government Department. The Respondent argues that, similarly to this case, fitness for duty and entitlement to full pay in the present complaint are “not guaranteed to the Complainant” (they are subject to medical assessment by the OHS and the applicable terms of the sick leave scheme in relation to pay) and the “difference between the Complainant’s expectations and the wages paid by the Respondent does not fall within an infringement of Section 5 as defined by the Act”. The Respondent submits that there has thus been no unlawful deduction.

In addition to the statutory nature of the public service sick leave scheme, and the statutory authority of the Ministers for Education and Public Expenditure & Reform (to determine the terms and conditions of employment), the Respondent also invited the hearing to consider the contractual aspect. In this regard, the Respondent relies on the Labour Court determination PWD1817 Norman Sharpe v the Irish Prison Service. The Respondent considers these decisions of the WRC and the Labour Court to have a direct application to the present complaint, as they affirm the right to require certification of fitness for duty from the employer’s occupational health advisor. The Respondent submits that paragraph 15.3 of the Sick Leave Chapter for teachers contains provisions similar to those in the prison officer’s case:

“ Prior to resumption of duties, a teacher who is absent on paid Sick Leave for 4 or more continuous weeks, or absent for any period of TRR/unpaid Sick Leave or a shorter period where the employer has reasonable grounds for concern must submit medical certification of fitness for duties. Confirmation of fitness to return to duties must also be obtained by the employer from the OHS.”

The Respondent asserts that there is no unlawful deduction for the purposes of the Act. In recording the Complainant’s sick leave, the school relied on the medical advice of the OHS and acted correctly within the terms of the Occupational Health Strategy and the Sick Leave Scheme. In applying the pay related terms of the sick leave to the Complainant’s salary, the Department acted in accordance with the statute. Insofar as the Complainant takes issue with the original assessment by the OHS which declared him unfit for work, that is the matter between the Complainant and the OHS and is not a matter that is capable of being determined in the context of a dispute before the WRC. It is the position of the Respondent’s that no breach of the Act has occurred as the Department, having acted on the instructions of the School, correctly applied the statutory regulations around sick leave to the Complainant’s salary, and acted at all times within the provisions governing the terms & conditions of his employment.

The Complainant has been employed by the named primary School since September 2000. A number of issues arose, including child welfare concerns in 2016. The Complainant was referred to the OHS to review medical concerns he had expressed, which could have influenced his concerning behaviours. On 26th October 2016, Dr S of the OHS advised the school that she was “not in a position to stand over [the Complainant’s] current medical fitness for work.” Dr S furnished the Board with a further assessment on 8th March 2017 stating that:

“[the Complainant]’s medical assessment has revealed an unmodifiable medical condition. In my opinion this medical condition impairs [the Complainant]’s ability to perform his duties as a primary school teacher safely. It is my opinion, based on the assessment that [the Complainant] is medically unfit, long term, for his role as a primary school teacher.”

The Complainant was placed on sick leave on full pay from 7th November 2016 to 1st February 2017; half pay from 2nd February 2017 to 3rd April 2017 and the Temporary Rehabilitation Remuneration rate of pay from 4th April to 7th November 2017.

This is a claim under the Payment of Wages Act, 1991. Section 5 of the Acts stipulates as follows:

(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.

The Complainant is a teacher and, in accordance with his terms of employment, is subject to the circulars governing sick leave and entitlements to remuneration in respect of such absences.

The deductions at issue were made pursuant to the Public Service Management (Sick leave) Regulations 2014 (S.I. 124 of 2014) and in the Public Service Management (Sick Leave) (Amendment) Regulations 2015 (S.I. 384 of 2015). The Respondent is obliged to apply the terms of these regulations and has set out the terms and conditions of the scheme, as they apply to teachers in “Terms and Conditions of Employment for registered Teachers in Recognised Primary and Post-Primary Schools”. As such, the non-payment of remuneration was authorised and cannot be regarded as an unlawful deduction. I find that the Respondent was correct in applying the sick leave pay following the initial decision of the OHS. The Complainant accepted at the hearing that the Respondent is bound by the OHS’s medical opinion. He stated that “the school was right” to make the decision to place the Complainant on the sick leave following the initial decision of the OHS. However, he argues that once the decision was rescinded he had a legitimate expectation to receive a backpay of arrears. Central to the complaint therefore is not the issue of whether or not the decision to place the Complainant on sick leave was correct but the issue of whether or not the Respondent was obliged to repay the difference between the Complainant’s full pay and sick pay and TRR applicable in the period from 2nd February to 7th November 2017 once the second opinion was received from the OHS on 31st October 2017.

The Complainant was deemed unfit for work by the OHS and correctly, as confirmed by both parties, placed on sick leave. Following the OHS assessment, the Complainant privately made arrangements to see independent practitioners and subsequently submitted additional evidence to the OHS. On the basis of this evidence Dr R of the OHS wrote to the Chair of the Board of Management on 31st October 2017 stating the following:

“…I undertook a review of the occupational health of [the Complainant]. I did so because of conflicting evidence with respect to his medical status and fitness for work… … we received a number of medical reports from [the Complainant], that sought to question the determination reached by [the OHS]… Extensive medical evidence has been received, which calls into question the opinion initially offered… In order to ensure a rigorous process in place, I reviewed all of this evidence and shared it with the independent expert who we had engaged in the first instance … Having reviewed this evidence, he concludes that his initial opinion is not supported by the additional evidence and therefore it is not possible to continue to argue that this gentleman’s behaviours and alleged errors of judgement are a manifestation of a medical compliant or disability… Therefore, we conclude by offering the opinion that there is insufficient medical evidence to establish that this gentleman is disabled or unfit for work.”

I do not find that the correspondence from the OHS dated 31st October 2017 “rescinded” or “reverted” their previous decision, as claimed by the Complainant. The letter clearly points out that the engaged independent expert concluded that …”it is not possible to continue(emphasis added) to argue that this gentleman’s behaviours and alleged errors of judgement are a manifestation of a medical compliant or disability” and therefore the OHS concluded that “…there is insufficient medical evidence to establish that this gentleman is disabled or unfit for work.” I note that the Chairperson of the Board of Management in his letter to the Complainant dated 8th November 2017 states that he received a letter from the OHS “effectively rescinding their previous opinion”. However, it is my opinion that the wording used by the Chairperson cannot be construed to be an assurance or indication of “backdating” of the medical opinion of the OHS or/and repayment of any monies deducted in accordance with the sick pay regulations. As the Complainant had not been cleared to be fit for work by the OHS until this juncture he was therefore correctly placed on sick leave as per the OHS initial decision. I find that the Respondent did not breach Section 5 of the Act and the deductions were lawful in circumstances where the Complainant had exhausted his sick leave entitlements and had not be certified fit to return to full duties until 31st October 2017.

Having considered the submissions of both parties to this complaint and the evidence available to me, I declare that the complaint is not well founded.

Sick pay-back pay- revised opinion of Occupational Health Specialists