PWD1914

Ms McKenna-Keane, B.L. on behalf of the Complainant claimed that the Respondent paid the Complainant less than the total amount of wages that was properly payable to the Complainant in contravention of section 5 of the Act.

She submitted that the Complainant’s prior teaching service in Switzerland should have been regarded as equivalent to approved teaching service for the purposes of incremental credit. Ms McKenna-Keane submitted that the Complainant had a legitimate expectation, under Circular 0029/2007 that such service would be reckonable. The Complainant contended that the Respondent had not examined her substantive application on its merits. She said that in fact, the Complainant was informed by the Respondent that ‘these applications are automatically rejected because they do not have a defined set of criteria’. Therefore, she contended that the Respondent did not provided any lawful reason under section 5 of the Act, why it did not consider the Complainant’s application for the award of wages properly payable to her.

Summary of the Respondent’s Position

Mr Conor Quinn, B.L., instructed by the Chief State Solicitors Office, stated that the wages paid to the Complainant were those that were properly payable to her in accordance with the terms of the Departmental Circulars that applied, and as such that, in accordance with section 5(6) of the Act, there was no deduction. Without prejudice to its contention in that regard, he submitted that the non-payment of incremental credit in the circumstances was permitted under section 5(1) as it was required and/or authorised by a Department Circular, which is an instrument made under statute.

Furthermore, Mr Quinn stated that the Circular refer to “equivalent to approved teaching service” and has consistently been understood by all parties as referring to service in State schools and not private schools.

The terms and conditions of teachers employed in Oireachtas funded teaching posts are formulated by the Teachers’ Conciliation Council (TCC), which is made up of the Department, management and unions and are of general application to all teachers appointed to such posts. The phrase “equivalent to approved teaching service” (and similar) was used consistently in TCC reports and Circulars from 2000 to the present day to refer to service in State schools.

Mr Quinn contended that there was no requirement in the legislation for the Department’s conclusion to be reasonable or objectively justifiable. On the plain meaning of the section, the test is simply whether the Department is satisfied that the service is equivalent.

Discussions and Conclusions of the Court

Clause 6 (a) of Circular 0029/2007 deals with “Other Reckonable Service”, under the heading Teaching Service in Non-EU Countries, it provides as follows: -

• ‘(i) Whole-time teaching service given in a Non-Member State of the EU and demonstrated by the teacher, to the satisfaction of the Department or Chief Executive Officer of the Vocational Education Committee as appropriate to be equivalent to approved teaching service may be regarded as approved teaching service for the purpose of this sub-section’.

Subsection (6)(a) of section 5 of the Act provides, in effect, that where the total amount of wages properly payable to an employee is not paid, the deficiency or non-payment is to be regarded as a deduction. Consequently, the Court must turn to a consideration of the amount that was properly payable to the Complainant.

The Complainant is claiming that the amount properly payable to her at the material time is to be assessed by reference to the terms of Circular 0029/2007. Accordingly, this Court must decide whether the claimed incremental salary payment was “properly payable” to the Complainant by the Respondent.

The Court is satisfied that Clause 6(a)(i) in the Circular provides discretion to the Respondent to determine whether or not non-EU teaching experience is equivalent to approved teaching service when attracting incremental credits. Therefore, such an entitlement was not a contractual entitlement but was dependent on application of discretion by the Respondent.

The Court is satisfied that the Respondent exercised that discretion when the Complainant submitted her application in October 2017. It decided that her service was not equivalent for the purposes of eligibility for incremental credit, the Court is satisfied that it was entitled to do so under the provision of the Circular.

Determination

The Court, taking account of the Act at Section 5(1)(a), finds that no unlawful deduction from the Complainant’s salary has taken place. It is satisfied that the incremental credit claimed by the Complainant does not come within the term wages that were ‘properly payable’.

On that basis, the Court concurs with the Adjudication Officer’s Decision that there was no breach of the Act and accordingly upholds her Decision. The Complainant‘s appeal fails.

The Court so Determines.

Signed on behalf of the Labour Court



Caroline Jenkinson
CR______________________
28 MAY 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.