Complainant

Respondent

Anonymised Parties

A Tutor

An Educational Institution

Representatives

Niamh Ní Cheallaigh, IBEC

Act

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-00022737-001

22/10/2018

The complainant commenced employment with the respondent as a tutor on adult education programmes in December 2005. She was paid an hourly rate until September 2017, when she opted to take up a different contract on the teachers’ pay scale, which is a salaried position.   Her complaint is that, when she resigned from this role in April 2018, she did not receive her holiday pay.

As a tutor since 2005, the complainant was on an hourly rate but when she opted for the teacher’s scale, she was paid a salary. The first point of the teacher’s scale in September 2017 was €33,805 and this increased to €34,143 in January 2018. For the academic year 2017 – 2018, the complainant agreed to work 12.8 hour per week which is 399.5 hours per year. This is equivalent to .54% of a full-time role. On this basis, she was paid .54% of the full-time salary which was €18,254 from September – December 2017 and €18,560 from January 1st 2018.

The complainant was paid fortnightly, with the amount being a monthly salary divided by two.   She was to be paid 24 times a year.   When she started on her teacher’s contract in September 2017, she expected to be paid every month until August 31st 2018. When she resigned on April 27th 2018, she expected to be paid the equivalent of her hourly rate of pay for June, July and August, less a deduction because she had worked for eight out of the nine months of the school year.  

Following her resignation, the complainant said that she made several efforts to get an answer to her query about what she understood was unpaid annual leave, but she didn’t get a satisfactory response. After she submitted her complaint to the Workplace Relations Commission, the complainant received an amount of €2,295 gross into her bank account, and a payslip for this amount. This was not the amount that she calculated she was entitled to in unpaid annual leave.   She got no explanation from the respondent as to what the payment was for.

In her evidence at the hearing, the complainant said that she never received a contract of employment and she was not given a clear explanation of her salary on the teacher’s scale when she opted to move to that scale in September 2017. She contends that she should be paid for the holidays in June, July and August, on a basis proportional to the eight of the nine months that she worked in the school year.

At the hearing, the Human Resources Manager explained the background to the complainant moving from tutor to teacher status. The rationale behind this change is not relevant to this decision. The complainant opted for teacher status and commenced on a teacher’s contract on September 1st 2017, working 399.5 hours per year. While she worked on this contract, she also had an hourly contract as an adult education tutor and she continues in this role.

The respondent’s position is that, when she resigned, the complainant had received her annual leave entitlements in full, as she was paid a salary while working from September 2017 until April 2018. During this time, she was paid while she had time off at the October mid-term break, the Christmas holidays, the Spring mid-term and the Easter holidays.   I calculate that this adds up to more than 20 days’ annual leave. When she resigned, she received her final salary at the end of April, and no holiday pay was due.

After several staff movied from tutor to teacher status, some re-considered the benefits and the impact on their pension. Some who had opted for teacher status decided to move back to tutor status. The complainant was not one of these, as she resigned from her role as a teacher in April 2018.

At the hearing, the Human Resources Manager said that for some teachers, there was a financial disadvantage to opting for the teacher position and, when they reverted to being a tutor, their wages for the previous academic year were re-calculated and they were paid the difference between what they would have earned as a tutor and what the earned as a teacher. The Human Resources Manager decided to carry out a comparison between what the complainant earned as a teacher and what she would have earned as a tutor. The difference was a credit of €2,295 and it was decided to pay this to the complainant in November 2018. This payment has no relevance to the complainant’s claim that she did not receive what she expected in lieu of holiday pay.

The respondent’s position is that all wages properly payable to the complainant have been paid to her in line with the provisions of the Payment of Wages Act 1991.

Having explored this matter with both sides at the hearing, I am satisfied that the complainant received her entitlement to holiday pay and that no payment is outstanding.

It became evident at the hearing that the complainant’s expectation that she was entitled to outstanding holiday pay arose from the fact that she received a less than comprehensive explanation of how her salary was to be calculated as a teacher. It is evident that she was unaware of the impact on holiday pay of any decision to resign before the end of the academic year. In any event, the pay terms of the complainant’s status as a teacher were “un-converted” back to tutor status in November 2018 and she has now received a salary contingent with that role, as it was considered to be more beneficial to her.

It is my view that the complainant has not suffered any loss of pay related to holidays as a result of changing from tutor to teacher status. The Human Resources Manager apologise for the failure to properly explain her salary to the complainant when she took up the teacher position.   The Manager agreed that she would write to the complainant in early January and provide full details of the way in which her salary as a teacher was calculated, including her point on the teacher’s scale, her proportional part-time salary and the policy in relation to holiday pay.

I have concluded that the complainant was paid her entitlement to holiday pay when she worked as a teacher from September 2017 to April 2018. As a result, I decide that this complaint is not upheld.

Holiday pay