Complainant

Respondent

Anonymised Parties

Childcare practitioner

Preschool

Representatives

Complainant

Fiona Shiel Mason Hayes & Curran

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-00030414-001

21/08/2019

The complaint is based on a promise that the complainant would receive a salary of €26,000 salary per year and the same benefits as other permanent staff. She started on a salary of €22,062 and was told funding in time would be restored to allow her to receive the higher salary and benefits that other staff have. The preschool state that the school is in a disadvantaged area and that a deficit arose requiring that savings were achieved. The complainant’s terms and conditions have been fully honoured, and no unlawful deduction has been made. The school is the employer and the contract that the complainant has signed has been fully honoured.

The complainant states that when she was initially told that she wouldn’t be offered the same terms and conditions as other staff due to funding difficulties; she turned down the position. Only when her manager asked her to reconsider based on a promise that when the funding was restored; she would receive the same as the other staff, did she accept the contract. She was told that the board hadn’t understood fully the timing and payment of state support to the preschool. Once the state funding was confirmed, her manager it is alleged, stated that matters in contention would be resolved. That manager has subsequently left the school. The complainant states that she has exhausted the internal grievance procedure and she has been fobbed off.

The school stated that the complainant has been treated fairly and terms and conditions reflect a pro-rata adjustment having regard to changes in terms relating to school holiday periods. The new terms were not a unilateral change to an existing contract. The contract of employment accepted by the complainant was clear and unambiguous. The school is the employer not the department of education; the contract signed by the complainant has been honoured. The terms in the complainant’s contract reflect the funding in total available to the school and the capacity to meet the pay costs. The older contracts were no longer viable for new staff based on the total funding available to the school. Solely based on the total funding available both from the state and other contributions and the need to stay within budget were contracts changed. The school has applied the same rules and terms to all new staff. The school never made a promise to the complainant, as is evidenced in the contract offered to the complainant. No unlawful deduction has been made. It is also clear while the manager may have made a promise to do their best for the complainant; it was a conditional promise subject to board approval and could be described as a promise of best endeavours.

Section 6 of the Act states:

 [ Complaint to adjudication officer under section 41 of Workplace Relations Act 2015 ]

6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding —

(a) the net amount of the wages (after the making of any lawful deduction therefrom) that —

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

( b ) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a) , twice the former amount.

(2) ( a ) An adjudication officer shall not give a decision referred to in subsection (1) in relation to a deduction or payment referred to in that subsection at any time after the commencement of the hearing of proceedings in a court brought by the employee concerned in respect of the deduction or payment.

( b ) An employee shall not be entitled to recover any amount in proceedings in a court in respect of such a deduction or payment as aforesaid at any time after an adjudication officer has given a decision referred to in subsection (1) in relation to the deduction or payment. 

Section 5 of the Act states:

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

From the facts of this case the complainant alleges that a promise was made to her by her immediate manager to pay her the same as other permanent staff. However, the Board never approved or knew of that promise. The only contract that exists and which the complainant signed has been fully complied with by the school. The matter in contention relates to an alleged promise, made by the complainant’s manager, to give the complainant the same terms and benefits as others; subject to funding and the ability to persuade the board to change its mind about the terms offered to the complainant. It is conditional on funding and gaining the approval of the board. These conditions have not been met and therefore no change to the complainant’s wages as detailed in her contract has occurred. The school continues to honour those terms. The terms of the employee are determined by the school board and not by the department of Education.

While the complainant maybe aggrieved about the failure of the promise to materialise; it (the promise) is not a payment of wages as defined under the 1991 Payment of Wages Act. The promise to seek parity for the complainant is fundamentally different to agreeing a new term to change the wages of the complainant to a new higher rate. It was a conditional promise and the contract signed by the employee reflect the only terms that the employer was agreeing to pay.

The employer continues to pay the wages of the complainant as detailed in her contract. The employer has not made any unlawful deduction from the employee and on that basis the complaint is not well founded.

The complaint is not well founded as no unlawful deduction has been made by the employer as detailed in section 5 of the Act and the complaint fails.

Contractual promise