Complainant

Respondent

Anonymised Parties

A teacher

A Government department

Representatives

Emmet Whelan,  Byrne Wallace Solicitors

Cathy Smith, BL instructed by Aoife Burke Chief State Solicitor's Office

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-00033524-001

07/01/2020

The complainant is employed as a teacher.  She was dismissed from her role in August 2016 and her complaint of unfair dismissal was upheld by the Labour Court.  This determination was appealed to the High Court.  The High Court ruled that the matter should be re-considered by the Labour Court.  The Labour Court subsequently re-considered the case and a determination was issued in June 2018.  This determination was also appealed to the High Court.  Pending the outcome of the High Court appeal the complainant was reengaged.  In July 2019 the High Court upheld the Labour Court determination which was that the complainant be re-engaged from the commencement of the school year 2018/2019.  There were two aspects to this complaint. The first was that the respondent did not receive the correct incremental credit when her service from August 2013 is taken into account.  Secondly, the complainant claims that deductions were made to her pay for the academic years 2016/2017 and 2018/2019.

The complainant was employed as a permanent teacher from August 2012.  In October 2015 her contract was changed which resulted in her employment status changing from permanent to fixed term.  She was dismissed in August 2016.  The complaint made a compliant of unfair dismissal to the Workplace Relations Commission.  The determination was appealed to the Labour Court which upheld the complainant’s complaint of unfair dismissal and determined that she should be re-engaged from the commencement of the school year 2018/2019.  This determination was appealed to the High Court which in turn determined that the case should be re-considered by the Labour Court.  The Labour Court upheld the complaint of unfair dismissal and determined that the complainant should be re-engaged.  That Labour Court determination was also appealed to the High Court.  The complainant was re-engaged by the respondent pending the hearing of the High Court case.  On 5th July 2019 the High Court upheld the determination of the Labour Court.

As the complainant was a permanent employee the contract issued in October 2015 was deemed void by the Labour Court and the Labour Court directed her re-engagement as a teacher from the commencement of the school year 2018/2019 and paid on what is known as the Teachers Common Basic Scale without loss of her prior service.

As the complainant is a permanent employee with effect from August 2013 she should receive all the incremental credit in line with the relevant circulars and specifically Circular 59/2016.  This could affect her pay and the respondent will be asked to confirm this.

In addition to this the complainant alleges that she had illegal deductions from her pay for the academic years 2016/2017 and 2018/2019.

In relation to the academic year 2016/2017 the complainant should have been on full salary at point 6 of the applicable salary scale which is €39,793.  The complainant’s loss is €19,793 for this academic year.

In relation to the academic year 2018/2019 the complainant should have been on point 8 of the applicable salary scale which is €45,652.  The complainant’s loss for this academic year amounts to €9,587.

The complainant is paid by the respondent and in that context is the “employer” for the purposes of the Payment of Wages Act 1991.  The deductions are in breach of section 5 of the Payment of Wages Act 1991.

The complainant made a complaint in January 2020 under the Payment of Wages Act, 1991 in which she appears to rely on the Judgement of the High Court dated 5th July 2019 in support of her complaint that wages have not been properly paid to her. 

The respondent accepts that it is regarded as “paymaster” and this is defined in Circular 0052/2013:  “Paymaster – means the person/organisation in charge of paying salaries.” but was not party to any of the legal proceedings related to the complainant.

It is the respondent’s view that it was obliged to implement the terms and conditions directed by the Labour Court when it ordered the re-engagement of the complainant with effect from the 2018/2019 school year.  The respondent confirms that it has fully implemented all those terms and conditions as directed by the Labour Court.  Consequently, the respondent is at a loss to understand the basis on which this complaint has been made.  The respondent does not have any understanding as to the reason the complainant makes her complaint by reference to 1 Sept 2019.  The complainant has failed to articulate what she claims are wages properly payable to her as wages. 

The respondent is at a loss to respond fully to this complaint as the complainant has not provided details and particulars which would enable them to do so.  If the complainant is claiming that she is entitled to wages which are outside the terms of the Labour Court determination she has not provided details of the claim, the basis for the claim and the amounts which are payable within the meaning of the Payment of Wages Act, 1991.

At the initial hearing there was much discussion on the incremental progression of the complainant and the application of various circulars on her point of scale.  Following this the respondent provided a detailed breakdown of her incremental progression from 01/09/2013 to date.  This was followed by a comprehensive analysis and this showed that the appropriate incremental progression had occurred.  In particular the implications of the application of Circular 0048/2017 which provided for increment freeze as provided for in the Public Service Pay Agreement (The Lansdowne Road Agreement).  The detailed analysis outlined the rationale for each point on the scale to which the complainant moved or did not move by virtue of the increment freeze.

It was submitted on behalf of the complainant that arising from the information and analysis provided by the respondent she now accepts that she has received the correct incremental credit and progression taking into account her permanent service from August 2013.  This part of the complaint is now concluded, and a decision is not required.

In relation to the second part of the complaint I have reviewed the documentation and submissions provided and considered the evidence provided at the hearings.  Wages are defined in Act means “any sums payable to the employee by the employer in connection with his employment, including (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, …”

I note that following the various legal proceedings the complainant was re-engaged from the commencement of the school year 2018/2019.  The Labour Court determination is clear that the primary remedy was re-engagement and not reinstatement.  I accept that the respondent implemented the determination of the Labour Court dated June 2018 in full.

The complainant seeks payment based on a perception that she is entitled to pay for permanent hours for the years in question.  When she was re-engaged her hours increased to 22 hours with effect from 1st September 2019.  She has been paid correctly for those hours.  The complainant was paid correctly for the hours she worked.

It is clear from the submissions and evidence that the complainant did not provide any evidence on which she could show that she was subjected to any deductions in pay or that there were any errors in pay for the two periods outlined above.   The complainant also did not provide any evidence of a contractual entitlement to any payment for the periods in question.  I cannot find any reason why the complainant should be paid for a period when she did not have service and when she should be paid for a higher number of hours that she was contracted for.  In all those circumstances I find that this complaint is not well founded.

For the reasons outlined above I find that this claim is not well founded.

Incremental credit.  Re-engagement.