ADJ-00014000

Complainant

Respondent

Anonymised Parties

A Director

An Educational Board

Representatives

Teachers' Union of Ireland

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-00018388-001

09/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00018388-002

09/04/2018

An Irish translator had been requested in advance but did not arrive. Parties were happy to proceed without an Irish translator.

The complainant submits that he has been paid less than the amount due and that he has a dispute with regards to arrangements personal to him that had been withdrawn and the stress that such withdrawal has had on the worker.

The complainant submits that he commenced working as a teacher in 1992, was promoted to a Principal of a school in 1996, and in 2011 undertook the role of Acting Chief Executive Officer.   He was appointed Acting Director of X in September 2013. During his time in the Acting positions he maintained the salary of his previous role of Principal and received confirmation from the then CEO that this would continue.

It was submitted that this arrangement regarding retention of his salary was also subject to a parliamentary question in the Dáil where it was confirmed at that time that such an arrangement would remain.

The complainant applied for and was successful in securing the permanent position of Director of X in September 2016 through the Public Appointment Service (PAS).   It was submitted that the complainant wrote to PAS for confirmation in advance that the terms and conditions relating to his position of Principal of a school would continue to apply to him; as the salary for the role of Director of X was less and PAS raised no objection to same. Furthermore, it was submitted that this is provided for within the PAS booklet. The complainant has not signed a contract of employment for the role of Director of X.

The complainant’s position of Principal was backfilled on a permanent basis in March 2017 and the complainant expected as per promises that the terms and conditions of the role of Principal would continue to apply to him as before. Furthermore, the complainant engaged with the process of recruiting for his backfill to the role of Principal once he secured the necessary reassurances.

To his surprise, the complainant was issued an instruction by the CE that deductions would be made to his pay in October 2017 and that the respondent was seeking to recoup monies from March 2017. This has caused the complainant considerable concerns and stress which has affected him physically and mentally.

The complainant submits that he never resigned from the role of Principal and does not accept that his change in employment status is any more than a reassignment and that under the Education and Training Boards Act 2013, all staff matters are deemed an Executive Function vested in the Chief Executive of the respondent and not an issue for the Board. It was further set out that the relevant government department which the respondent refers to, is not his employer and that the Chief Executive of the respondent has the sole discretion, as per the Act, to resolve the issue in question.

It was submitted that the respondent failed to pay the complainant the monies he was owed which was in in breach of the act and that no notice was given of such a change in his salary. Furthermore, another employee, Mr A, in a different geographical area to the complainant, mirrors the situation of the complainant.   However, in the case of Mr A, he continues to receive the terms and conditions from his previous position of Principal of a school despite having engaged in an identical process as the complainant through PAS

The complainant submits that he has been paid less than the amount due during the cognisable period.

The respondent submitted that the complainant is an employee in good standing having commenced as a teacher in 1992.

It was submitted that no deduction was made to the complainant’s salary but that the respondent adjusted the complainant’s salary to the salary attached to the post of Director of X which the complainant secured in September 2016 and that the CE did not have discretion outside of this.

The complainant had previously taken on the role of Acting CEO and later on a role of Acting Director of X and continued to be paid the salary for his post as Principal.   The complainant applied for the permanent position of Director of X through public competition and was advised that he was appointed in September 2016 which the complainant accepted, and his rate of pay continued to be that of Principal until he was advised in October 2017 that his salary, effective March 2017, would be the salary which applied to the role of Director of X.

The respondent submitted that they are bound by the Education and Training Board Act 2013 which sets out at Section 19(2)

“The Terms and conditions of service of a member of staff of an education and training board shall, with the consent of the Minister and the Minister for Public Expenditure and Reform, be such as may be determined from time to time by the board.”

Section 19(3) also sets out

“There shall be paid by an education and training board to the members of its staff such remuneration, allowances and expenses as, from time to time, the board with the consent of the Minister and the Minister for Public Expenditure and Reform determines”.

The respondent also set out Government Department Circulars which the respondent submitted they are bound by, including DES Circular 0065/2018 and DPER Circular 08/2018. It was confirmed by the respondent that they had not sought the consent of the Minister and that they had engaged with the complainant to try and resolve the matter but to no avail.

An Irish translator had been requested in advance but did not arrive at the time of the hearing. Parties confirmed they were happy to proceed without an Irish translator and the hearing proceeded in English.

The complainant had been in a number of Acting Up positions and during this time retained his salary from his previous role as Principal of a school as was the norm. In 2016 the role of Director of X was advertised as a permanent role through the PAS and the complainant applied for the role and was offered same in September 2016. In October 2017 the respondent advised the complainant that his salary would be that associated with the role of Director of X and applied this salary change. The complainant details that he has been paid less than the amount due during the cognisable period.

The Act at section 5 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.

Section 5 of the Act deals with regulation of certain deductions made and payments received by employers and in particular section 5(6) states;

                “Where—

(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”.

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.

Therefore, I must consider the amount that was “properly payable” to the Complainant in the six-month period covered by the claim.

I note that at the time the complainant took on the role of Acting Chief Executive Officer, the complainant retained the salary associated with the role of Principal which was a higher salary and this was confirmed to him in a letter from the then CEO. The complainant was appointed Acting Director of X in September 2013 and again continued to retain the salary for the Principal role which was a higher salary than that for ActingDirector of X.

This post of Director of X was advertised through open competition with PAS as a permanent role and I note that the booklet relevant to this post advises candidates to “please read (the booklet) carefully”. This PAS booklet then sets out details pertaining to the role of Director of X including that the:

“Candidates should note that the startingsalary will be at the minimum of the appropriate payscale and will not be subject to negotiation”

“Different remuneration and conditions may apply, if immediately prior to appointment the appointee is already a serving Civil Servant or Public Servant”.  

The complainant submits that this is a reference to the complainant continuing to maintain the higher salary associated with role of Principal and that is within the gift of the respondent and was promised by the respondent. The respondent submits that this aforementioned section within the PAS booklet, is explained by Section 2(7) of Circular letter 0065/2018, which applies to the complainant, setting out

 “Where a person who obtains the position is currently earning a salary which exceeds the maximum of the new position’s scale then they may be appointed to the position on the maximum of the new position’s scale only. No acting-up allowance is payable in this situation.   No derogation from this principle will be considered.”

The complainant was issued a contract effective September 2016 and submits that he did not sign his contract, however I note that he has continued in his role of Director of X during this time.   The change in his salary which the respondent submits is associated with salary pertaining to the permanent role did not take place until October 2017; for reasons which were not entirely clear, and I note that the respondent does not appear to be pursing what they referred to as this overpayment between March 2017 - October 2017. The complainant submits that another person Mr A. employed by a different respondent, in a different geographical location, albeit in a similar role; continues to enjoy the higher salary associated with Mr As previous role as a Principal of a school. I note that neither Mr A or persons involved in appointing Mr A to his role, were available for the hearing to give direct evidence and to have that evidence examined. Furthermore, it is clear that Mr A is a person employed by a different respondent. The complainant also submits that he was guaranteed by the former CEO that he would continue to secure the salary associated with his former Principal role, however, from reading the correspondence it would suggest that this payment would only continue while the complainant was in a acting position or similar. I do not find that the complainant was in an acting position during the cognisable period. Having reviewed copies of emails provided to me, including one from Mr A to the complainant, dated 31 August 2016, it is clear that the complainant was aware that there was a threat to his Principal salary by accepting an offer of a permanent role.

Having heard the evidence of the parties, I find that the complainant accepted a permanent role of Director of X with its associated salary and that the respondent eventually made the appropriate adjustment associated with the salary for that position. The monies which the complainant submits were not paid to him, were not “properly payable” to him under the Act and I declare that the complaint is not well founded.

As referred to in CA-00018388-001 above the worker submits that he commenced with the respondent as a teacher in 1992, was promoted to a principal in 1996, and in 2011 undertook the role of acting Chief Executive Officer. He was appointed Acting Director of X in September 2013. During his time in the Acting positions he maintained the salary of the role of Principal and received confirmation from the then CEO that this would continue. He was permanently appointed as Director of X through open competition and found out in October 2017 that the employer was reducing his salary.

The worker submitted that he has a good relationship with the employer. It was also submitted there is nothing preventing the employer allowing him to sustain his previous salary for the role of principal as his current role is a more senior role, with less pay and that the employer has not engaged with consultation with the Minister as per the relevant Act.

The failure of the employer to follow through on previous commitments given to him has caused him significant financial and mental stress

The employer outlined that the worker is precluded from referring claims concerning rates of pay under the legislation.

As referred to in CA-00018388-001 above, the worker’s salary was adjusted in line with the appropriate salary for his permanent role following ongoing conversations with the worker. The employer had determined that March 2017 was the appropriate date in which to determine the salary adjustment as that was when the worker’s previous role of Principal had been permanently backfilled.

An Irish translator had been requested in advance but did not arrive at the time of the hearing. Parties confirmed they were happy to proceed without an Irish translator and the hearing proceeded in English.

The workers submits a dispute in relation to his pay and in relation to the manner in which the employer dealt with his dispute.

Section 13 (2) sets out that “Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.”

On that basis, I am precluded from hearing a dispute connected with rates of pay of the worker.

The second element of the worker’s dispute is that promises were made to him and it was his expectation that he would retain his Principal salary and that the manner in which the employer stopped his pay has caused him significant stress. The worker further submits that the employer failed to engage with the relevant Minister regarding his claims despite a provision within the legislation to do so. The employer submits that they were left with no alternative but to apply the salary associated with the worker’s position of Director of X and that they hold the worker in high regard. I also note that the parties appear to have a good working relationship.

Have considered all the submissions, I recommend as follows:

I recommend that the Employer should give due consideration to engaging with the Minister as provided for in Section 19 of the Education and Training Boards Act 2013.

I further recommend that the employer pay the worker compensation of €2,000 owing to the unique circumstances of this dispute and the manner in which it was dealt with.

CA-00018388-001

I declare that the complaint is not well founded.

CA-00018388-002

I recommend as follows:

I recommend that the Employer should give due consideration to engaging with the Minister as provided for in Section 19 of the Education and Training Boards Act 2013.

I further recommend that the employer pay the worker compensation of €2,000 owing to the unique circumstances of this dispute and the manner in which it was dealt with.

Payment of wages, industrial relations