Complainant

Respondent

Parties

Rachel  Walsh

Department Of Education And Skills

Representatives

ASTI

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-00042094-001

21/01/2021

The complainant submits that the respondent has failed to pay her the qualified rate of pay for a teacher and that the qualified rate of pay is monies properly payable to her.

The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings.

The parties were advised that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that this hearing before the Workplace Relations Commission would be held in public and that this decision would not be anonymised and there was no objection to same. 

Parties were also advised that an Adjudication Officer may take evidence under oath or affirmation and that cross examination is permitted.  Evidence was taken under oath or affirmation, in the main from the complainant, Rachel Walsh and from Majella O’Dea for the Respondent and cross examination permitted.

The complainant submitted that she is a qualified primary school teacher who also has a Master’s Degree (MA) in Special Educational Needs (SEN) and extensive experience teaching students on the autism spectrum disorder (ASD) in secondary schools, both in Ireland and the UK.  She has been employed in Colaiste Einde, Secondary School, since September 2018 and teaches full time (22 hour contract) in the Special Class for students with Autism.  This is a ‘special class’ setting located in a mainstream, post primary school and delivers the primary curriculum to 12-18 year old students with Autism as well as other educational content similar to that of a ‘Special School’ curriculum.

Despite the complainant’s extensive qualifications she submitted that she has been left in a professional and financial limbo by the respondent for over two years with regards to her entitlement to a qualified rate of pay and access to the common basic salary scale for teachers.  The complainant gave evidence that her request to be remunerated at the qualified rate of pay is supported by the school principal as well as the school’s Board of Management but that the respondent has refused her claim, thus far.

The complainant gave evidence that she has dual registration with the Teaching Council, in what is referred to as Route 1 (qualified Primary school teacher ) and Route 4 (Other/Special Educational Needs - based on the complainant’s Master’s Degree (MA) in Special Educational Needs as well as extensive Continuing Professional Development  (CPD) in the area of SEN over a 10 year career.  The complainant also referred to her other qualifications including as a Special Educational Needs Coordinator and an Educational Assessor and her extensive teaching duties and experience as a special class teacher.  

In 2020, the principal of the complainant’s school applied for a Contract of Indefinite Duration (CID) for the complainant which the respondent refused as the respondent deemed that the complainant did not “hold the relevant qualifications".  This was appealed via the respondent’s CID adjudication process.  In July 2020, an adjudicator Mr X, Senior Counsel, was appointed to adjudicate on the matter and granted the complainant a CID contract and the complainant was informed of the decision on official Department of Education headed paper. It was submitted that Mr X, Senior Counsel works on behalf of the respondent and his role is to adjudicate on the legalities of such matters for the respondent and he clearly decided that the complainant met the eligibility requirements required for the complainant’s teaching position stating:

“I am of the view that in the exceptional circumstances of this case the Appellant has established that she is: 

(i)           registered with the Teaching Council; and

(ii)          the holder of qualifications appropriate to the sector…

Mr X, Senior Counsel further set out that contractually, the complainant should have been in receipt of the qualified rate of pay and allowances since commencement of employment in September 2018 and

“…In the circumstances of the present case the Appellant’s current registration status with the Teaching Council is not a ground of disqualification…”

The complainant submits that she was awarded a CID by the respondent and that this CID can only be awarded where you are regarded as a qualified teacher, therefore it is unfathomable as to how the respondent continues to expect the complainant to work for an unqualified rate of pay. In no other profession would this occur as you are either qualified for a job or you are not.

The complainant submits that teachers who meet the eligibility requirements should be remunerated at the qualified rate of pay  She further submitted that the Minister for Education and Skills, in accordance with Section 24 of the Education Act 1998, directs that school authorities must ensure that teachers proposed for appointment to teaching posts, for which a salary grant is being sought, must be registered with the Teaching Council in accordance with Section 31 of the Teaching Council Act, 2001.  The complainant is appropriately registered and has the qualifications appropriate to the sector and suitable to the post for which she is employed and therefore, should be remunerated at the qualified rate of pay.

The complainant further sets out that the Teaching Council seeks to set and uphold the strictest professional standards for teaching and teachers. In July 2020 The Teaching Council examined their legal regulations and in line with the Teaching Council Registration Regulations (2009) and (2016) acknowledged that the complainant’s qualifications are indeed appropriate to the sector and suitable to the post for which she is employed.  In line with these Regulations, the Teaching Council stated in their correspondence to the complainant dated 30 July 2020 that:

“It is clear therefore that the Teaching Council is of the view that you possess a qualification which is deemed to be acceptable for teaching pupils/students with special education needs in post-primary schools.”

and the Teaching Council advise that they had no difficulty with the complainant providing a copy of that letter to the Department of Education.

The complainant submitted that Circular 0031/2011 outlines the minimum requirements for employment as a teacher, including that they be

“be registered with the Teaching Council in accordance with Part 3 of the Teaching Council Act 2001”;

and that they must

“Have qualifications appropriate to the sector and suitable to the post for which s/he is to be employed (referred to in this circular as “appropriately qualified”. 

It was submitted that notwithstanding that the  circular was an overly ambiguous circular putting the most vulnerable students at risk; the Teaching Council and the adjudicator both determined that the complainant’s qualifications and registration are indeed appropriate to the sector and suitable to the post for which she is employed.  This is also supported by the complainant’s contract of employment which sets out under remuneration that “the salary scale attached to the position is the teacher’ common basic scale” and both she and the school signed this contract on 5th November 2018.  It was also submitted that the respondent continuously referred to the term “sector” but were unable to provide a definition of sector that could support rejection of the complainant’s complaint.

The complainant gave evidence that she has been denied a qualified salary and is seeking full reimbursement/back payment of monies owed to her (at point 11 of the pre-­2011 common basic pay scale since her appointment in September 2018).  Under cross examination the complainant submitted that with Covid-19 it was not possible to submit her claim earlier than she had and it had also been her expectation that the respondent would pay her the qualified rate of pay after the decision of Mr X, Senior Counsel, regarding the CID and that the cognisable period should be extended to 12 months.

It was submitted that the respondent had failed to pay the complainant monies properly payable and that the respondent had been unable to explain the reason why they had not paid her the monies properly payable.  The respondent were in effect saying that Route 4 was not fit for purpose in terms of providing benefit to the complainant in terms of pay.  The complainant made comparisons with Early Intervention Teachers who work with ASD classes in a primary school settings but that the complainant has been penalised by working with those vulnerable students in secondary school.

The complainant outlined the impact that this is having on her and the stress that it is causing as she is not paid equitably which is unfair and very upsetting.   Under cross examination the complainant objected to the comparison by the respondent that should the complainant’s claim succeed it would be similar to saying a hairdresser could take up a position as a teacher. and outlined that the respondent was seeking to dilute the integrity of the complainant’s qualification.  The complainant gave evidence also that she would regard it as a wasted qualification to pursue a qualification in something such as English, purely to satisfy the respondent request for her to have a specific post-primary qualification as she would not be teaching this subject and it would not be of benefit to the students that she is required to teach.  She outlined that she signed up for the job she does in the hope that the issue regarding her pay would be resolved.

The respondent denied that the qualified teachers rate of pay in a post-primary school was properly payable to the complainant.  They submitted that under Section 24 of the Education Act 1998, the Minister for Education, with the concurrence of the Minister for Public Expenditure & Reform, is authorised to determine the terms and conditions of employment, including remuneration, for teachers paid out of Oireachtas funds. The employment terms & conditions for teachers, as determined and approved by the Ministers in question are therefore instruments of statute. This has been provided for under the Education Act 1998 under Section 24 (3) and 24 (6).

The respondent submitted that the complainant appealed an issue regarding a CID and an adjudicator, Mr X, Senior Counsel, was appointed and made a decision in favour of the complainant.  However,  it was submitted that the adjudicator’s decision is a decision regarding the CID only and that Mr X, who was the adjudicator, operated entirely independent of the Department. Mr X in his role as adjudicator has no role determining rates of pay which is a separate issue to that of determining CIDs as only the Minister for Education with the concurrence of the Minister for Public Expenditure & Reform, as prescribed under Section 24 of the Education Act 1998 can do so.

The respondent provided details of a number of Government Circulars that provide further clarity on whether monies are properly payable. It was submitted that Circular 0014/2017 sets out the qualification requirement for Special Education Teachers in mainstream post primary schools. It states that only a “fully recognised and registered post primary teacher” can be appointed to these posts.  The complainant by her own evidence is not a registered post primary teacher.

Circular 0040/2010 which was superseded by, Circular 0031/2011, states that a teacher must be “registered with the Teaching Council in accordance with Section 31 of the Teaching Council Act, 2001 andhave qualifications appropriate to the sector and suitable to the post for which s/he is proposed”.

Circular 0031/2011 sets out that a teacher must be both appropriately registered and qualified for the sector they are appointed to, in order to establish entitlement to the qualified rate of pay for that sector. In the case of a post primary school, “appropriately qualified and registered” would mean registered Route 2 (post primary) with the Teaching Council. While the complainant is registered with the Teaching Council, she is registered under Route 1 (primary) and Route 4 (other) and not Route 2 (post primary).  It was further submitted that under Section 3 of Circular 0031/2011,titled

“Minimum requirements for employment as a teacher”:

“3.1 … each employer shall ensure that each person proposed for appointment to a teaching post for which salary grant is being sought must- …

(b) Have qualifications appropriate to the sector and suitable to the post for which s/he is to be employed (referred to in this circular as “appropriately qualified”).”

The registration category Route 1 (primary) and Route 4 (other) relates to employment in the primary school sector only and a teacher registered Route 4 (other) is restricted to a special class setting in a primary school. Teachers who are registered Route 1 (primary) and Route 4 (other) are not appropriately registered for the post primary sector and therefore it is not open to the Department to pay the qualified rate of pay, which would apply to a teacher so qualified and registered, while the individual concerned is employed, ‘out of sector’, in a post primary school.  The complainant is, therefore, paid correctly on the unqualified teacher’s rate, while she continues to be employed in the post primary sector.   If the complainant took a position in a special class in a primary school she would be eligible to receive the qualified rate of pay as she would be appropriately qualified and registered for the primary sector.  Under Circular 0031/2011, schools are required to make every effort to recruit teachers who are appropriately qualified and registered for the sector in which they are employed.  This circular does allow for teachers registered under any other route (formerly ‘regulation’) to be employed, in circumstances where the school board have been unable to recruit a fully qualified and registered teacher, appropriate to that sector.

In response to the complainant’s reference to Circular 0031/2011 “Teacher Recruitment Registration and Qualifications”, the respondent advised that the complainant omitted to refer to 3.4 and 7.1 of Circular 0031/2011 which is the relevant part of the circular that applies to her and other teachers who are not registered and qualified for the sector (teachers who are teaching out of sector).   The complainant is registered with the Teaching Council but is only so for Route 1 (primary) and Route 4 (other). Obtaining a contract of indefinite duration (CID), on the basis of service with Colaiste Einde, has not altered the fact that Ms Walsh is not an appropriately qualified and registered post primary teacher and this has been explained to her on a number of occasions in previous correspondence.  It is a requirement of incremental credit circulars that a teacher must be (i) qualified, (ii) registered with the Teaching Council for the sector they are qualified in and (iii) in receipt of teachers’ incremental salary scale, The complainant is currently employed in a post-primary school within an ASD unit and is deemed not eligible to claim incremental credit as per Department circulars 0010/2001, 0029/2007 and 0029/2010.

In response to the complainant’s application for incremental credit on 13th December 2019, the Department of Education acknowledged receipt of an application for incremental credit in respect of prior service and the Department’s records show that the complainant made an application for relevant non-teaching credit with regard to this prior service in the UK, but this application could not be considered.  The Respondent advised the complainant ‘Your application cannot be assessed as you are employed as an unqualified post primary teacher and are not in receipt of incremental salary from this Department’. 

The Teaching Council of Ireland determines a person’s qualification for registration purposes only. Similarly Mr X, Senior Counsel, assessed the complainant’s entitlement for CID purposes only. Neither determine the relevant criteria for the qualified rate of pay. Remuneration is a matter for the Minister for Education, with the concurrence of the Minister for Public Expenditure & Reform.  Furthermore, the CID, carries the same pay entitlement as the contract(s) which led to the CID award i.e. payment at the unqualified rate of pay while she was employed ‘out of sector’ in a post primary school, on the basis that Ms Walsh was not, and is not, post primary registered.  As paymaster the Department is bound by its circulars and has operated within the terms of the circulars. The circulars are there to determine the appropriate rate of pay for teachers, the terms of which are agreed with education partners through a consultative process.

Under Priority 2 (item 2.6) of the Department’s Action Plan for Education under Building Momentum there is a commitment to engage with Unions to explore the concept of  Primary teachers to be allowed to be employed in post-primary schools at the qualified rate in special education settings as part of sequencing process.  This is an action which is being explored but to date no agreement has been reached between the Department and the union partners to alter the current position.

The distinction of routes in education is a key factor in this case as it determines whether a teacher is appropriately qualified to teach in a particular sector. Where a teacher is engaged to teach “out of sector”, they are paid at an unqualified rate. This is an agreed custom and practice.  The Department acknowledges that from time to time teachers are employed out of sector for various necessary and logistical reasons. However there are clear guidelines set out in Department Circulars for schools to ensure that schools employ teachers who are appropriately registered for the sector. The complainant is not the only teacher teaching out of sector. With regard to the rate of pay for the complainant, the Department are not treating her any differently to any other teacher in her position i.e. teachers that are currently teaching out of sector. A teacher registered under Route 3  Further Education would also be paid the unqualified rate of pay if they were teaching in the post primary sector. Similarly a post primary registered teacher would be paid the unqualified rate if teaching in the primary sector.

The respondent submitted that although the school is not represented at the hearing, there appears to have been a failing on the part of the Board of Management of the school in relation to following the procedures as set out in 7.1 of the circular in terms of continuing to seek to find an appropriately qualified registered teacher.

7.1 Where a registered but not appropriately qualified teacher is employed following the taking of all reasonable steps under paragraph 3.4 or 4, the school must continue to make all reasonable efforts to employ an appropriately qualified registered teacher.  Where an appropriately qualified registered teacher can be employed, the school must immediately terminate the contract of the registered teacher”.

In response to the complainant’s reference to her contract of employment, the respondent outlined that they have no role in relation to her contract.  Her contract of employment is with her employer, the school; it is not with the Department and that it was unfortunate the school were not in attendance to clarify their reference in the contract of employment to “basic salary scale”.  The respondent highlighted that the complainant’s contract sets out that it is for the post of Teacher and that Section 12 of her contract states:

“These arrangements are subject to collective agreements arrived at from time to time between teacher unions, managerial authorities of schools and the Minister for Education and Skills.’

The respondent submitted that there appears to be a failing on the part of the Board of Management of the school in relation to following the procedures to be registered and qualified for the sector as set out in the circulars. When a teacher is recruited by a school, the school submits an appointment form that the school and the teacher sign.  The respondent retrieved the  appointment form for the complainant dated 8 November 2018 which the complainant signed.   The complainant ticked off the box beside the following statement: ”‘Tick to certify that you are currently registered with the Teaching Council for the purposes of post primary teaching, in accordance with circulars 31/2011, 25/2013 and 52/2013’. 

The form notes underneath this that:

‘If you are not registered for post primary you cannot complete the form’.

On page 7 of the Appointment Form the Chairperson of the Board of Management filled out the following:

‘Appointment of Person for 2018/19 school year on an exceptional capacity as per Circular 31/2011’ 

And noted ‘Registered at Primary Teacher, route for application being processed by the T. Council’ And included on the form that the

“the above named is employed in an exceptional capacity under circular 0031/2011”. 

This response clarifies that the school knew at the time of the complainant’s appointment that she was not registered for the sector.

The complainant was employed by the school in September 2018, took the WRC case in January 2021 and has submitted that should she be successful in her case it should be backdated to September 2018.  The respondent submitted that they the complainant could have submitted her claim earlier but did not and also the respondent did not agree with the calculations provided by the complainant.

Ms O’Dea’s gave evidence that if the complainant’s claim was to succeed it could allow anybody not registered as a post primary school teacher, such as a hairdresser to seek to secure the qualified teachers rate of pay.  The respondent in evidence also submits that there have been failings by the school with the complainant’s contract of employment and that it was unfortunate the school was not at the hearing to address that. The respondent gave evidence that the Teaching Council of Ireland is also incorrect to make a decision on whether the complainant is qualified and registered as the Teaching Council of Ireland do not have jurisdiction to determine the pay of the complainant.  It was further set out that it was clear that the Teaching Council advised that it is for the respondent to determine pay. 

Under cross examination Ms O’Dea submitted that Mr X, Senior Counsel, appointed by the respondent to adjudicate on the complainant’s CID, was over reaching in his wording  of his decision.  Ms O’Dea confirmed that the Department accepted the decision regarding the CID; but that it was the school that was the other party to the case and not the Department. 

At the beginning of the hearing, I advised the parties that it was prudent of me to inform them that the respondent’s representative and witness Ms O’Dea was indirectly known to me.  I advised that I did not believe it presented a conflict of interest for me but that I would give parties time to consider same and hear their submissions.  Ms O’Dea replied that I was not known to her and that she was happy to proceed and the complainant’s representative advised that they were also happy to proceed.  Having giving consideration to the matter I do not believe that it presents a conflict of interest for me and I believe that I can decide the case impartially without risk of objective bias as set out in O Driscoll V Hurley {2016] IESC 32 in assessing a claim of objective bias.

The instant complaint has been submitted under the Payment of Wages Act, 1991 which provides under Section 5(6) that :

“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”.

For a breach of the Act to occur, the wages must be properly payable within the cognisable period. 

The complainant submits that her claim was submitted on 21 January 2021 but as she had been engaging with the respondent on the issue; including through her CID since 31 July 2020 and because of delays with Covid-19  that her claim should be backdated 12 months, from January 2020, if not earlier.  The respondent rejects this and submits that the complainant could have submitted her complaint at any time but did not do so.

Section 41(6) and 41 (8) of the Workplace Relations Act, 2015, provides as follows:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The complainant submits that she expected the issue to be resolved when the CID was granted and that with Covid-19, there were additional delays.  This might explain but does not excuse why the complainant did not submit her complaint earlier and I am not satisfied that the complainant’s failure to present the complaint or refer the dispute earlier was due to reasonable cause.  I find that the cognisable relevant period for this complaint is between 22nd July 2020 to 21 January 2021.

Both parties directed me also to the Education Act 1998 which provides under

Section 24 Provisions relating to staff.

2) The numbers and qualifications of the teachers and other staff of a recognised school, who are, or who are to be, remunerated out of monies provided by the Oireachtas, shall be determined from time to time by the Minister, with the concurrence of the Minister for Public Expenditure and Reform.

(3) The terms and conditions of employment of the teachers and other staff of a recognised school, appointed by the board and who are, or who are to be, remunerated out of monies provided by the Oireachtas, shall be determined from time to time by the Minister, with the concurrence of the Minister for Public Expenditure and Reform.

 (6) Where all or part of the remuneration or superannuation, or both, of the Principal, a teacher or another member of staff of a recognised school is paid or is to be paid out of monies provided by the Oireachtas, such remuneration and superannuation shall be determined from time to time by the Minister, with the concurrence of the Minister for Public Expenditure and Reform.

Section 24 of the Education Act 1998 also directs that teachers proposed for appointment must be registered with the Teaching Council in accordance with Section 31 of the Teaching Council Act 2001.  Section 31 of The Teaching Council Act2001 sets out how a person applies for registration.

Parties submitted administrative circulars which they advised supported their position in this instant case.  For clarity, I note that circulars may be regarded, as set out on government.ie web site as “…a written statement that provides information and guidelines on laws and procedures”. Circulars referred to by parties included:

Circular 0014/2017 titled Circular to the Management Authorities of all Post Primary Schools: Secondary, Community and Comprehensive Schools and the Chief Executive Officers of the Education and Training Board -  Special Education Teaching Allocation.  This sets out under Section 19:

 “Qualifications Required for Special Education Support Posts.

The following teachers can be appointed:

Fully recognised and registered post primary teachers

Circular 0040/2010 which was superseded by, Circular 0031/2011 is titled To: The Managerial Authorities of Recognised Primary, Secondary, Community and Comprehensive Schools and The Chief Executive Officers of Vocational Education Committees - TEACHER RECRUITMENT REGISTRATION AND QUALIFICATIONS.

This sets out that

“that people appointed to teach are registered teachers with qualifications appropriate to the sector and suitable to the post for which they are employed and that unemployed teachers are offered employment in preference to those who have retired”.

Section 3 of this circular also provides under Minimum requirements for employment as a teacher

3.1 Subject to paragraphs 3 and 4, each employer shall ensure that each person proposed for appointment to a teaching post for which salary grant is being sought must–

(a) Be registered with the Teaching Council in accordance with Part 3 of the Teaching Council Act 2001

and

(b) Have qualifications appropriate to the sector and suitable to the post for which s/he is to be employed (referred to in this circular as “appropriately qualified”)

The Teaching Council Regulations (Registration) 2016 set out that

In order to be entitled to be admitted to the register, each applicant shall satisfy the Council–

(a)         that the qualification(s) which he or she possesses meets the education, training and qualifications criteria for admission to the register by one or more of the following routes:

(i) primary;

(ii) post-primary;

(iii) further education; or

(iv) other,

as set down in the Schedule; and

(b)         that he or she has satisfied the Council that he or she is a fit and proper person to be admitted to the register.

The respondent also referenced

Circular 0010/2001 - Amendments to the Scheme for the Award of Incremental Credit (….primary schools….arrangements …to the award of Incremental Credit),

Circular0029/2007 (Scheme for the Award of Incremental Credit to Teachers at Second Level and 0029/2010 (Amendments to Scheme for the Award of Incremental Credit to Registered Teachers at Second Level).

During the hearing, the respondent advised that they are engaging with the trade unions to deal with issues raised by the complainant and others like her, through the respondent’s action plan for education, Building Momentum.  Parties needed to be regularly reminded, therefore, that the complaint in front of me is a complaint under the Payment of Wages Act 1991 and therefore, it is for me to establish the facts, apply the law and issue a reasoned decision regarding whether monies are properly payable to the complainant during the cognisable period. 

It was not in dispute between the parties that the remuneration of a teacher is to be paid out of monies provided by the Oireachtas, which is determined from time to time by the Minister for Education, with the concurrence of the Minister for Public Expenditure and Reform. 

The respondent submits that the complainant must be suitably qualified for the post-primary sector and that she is not.  Evidence was given by Ms O’Dea on the Teaching Council Regulations Registration 2016 which provides for “route of entry” which means the qualifications through which a teacher obtains entry in the Register and that the complainant does not have a post-primary sector qualification.  The complainant gave evidence that that the Teaching Council wrote to her on 30 July 2020 confirming that albeit the Teaching Council does not determine pay; the

“Teaching Council is of the view that you possess a qualification which is deemed to be acceptable for teaching pupils/students with special education needs in post-primary schools”.   

Thecomplainant submits that the Teaching Council has the authority to determine the suitability of her qualifications for the role in which is employed and that they have clearly established that she is.  The respondent’s response to the Teaching Councils confirmation that the “the complainant is suitably qualified for teaching pupils with special education needs in post-primary schools”, is that the complainant remains unqualified for her “sector” and that it is not for the Teaching Council to decide on the complainant’s rate of pay. 

Despite the many circulars that parties brought me through, they were unable to direct me to a definition of the term “sector” within the circulars.  I note that the respondent referred to 3.4 and 7.1 of Circular 0031/2011 which it was submitted applied to the complainant, but I note that this refers to teachers who are not registered and unqualified for the sector, whereas the Teaching Council has advised that the complainant is both registered and qualified for post-primary schools.  It would appear that the terms “school” and “sector” are used interchangeably.

Both parties made reference to the CID that the complainant had been awarded following the complainant’s appeal to the respondent’s appointed adjudicator Mr X, Senior Counsel.   I note that Mr X, Senior Counsel, in reviewing the complainant’s entitlement to a CID was also of a similar view of the Teaching Council that the complainant is “registered with the Teaching Council and holds qualifications appropriate to the sector”.  While it is clear that the remit of Mr X, Senior Counsel, was to review whether the complainant was entitled to a CID and complaints regarding the complainant’s pay did not come before him; importantly, Mr X appears to regard the term “sector” and “school” as also interchangeable.

Both parties directed me to the complainant’s appointment form to support their position. The form requested the complainant to:

‘Tick to certify that you are currently registered with the Teaching Council for the purposes of post primary teaching , in accordance with circulars 31/2011, 25/2013 and 52/2013’

And further states:

‘If you are not registered for post primary you cannot complete the form

The complainant ticked the box. 

Further on in the form the Chairperson of the Board of Management set out

“The reason an unqualified person is proposed for appointment to the post. No other applicant other than Rachel had L. Support qualification or any significant experience in the area.”

There is clearly conflict between the complainant and the Chairperson of the Board of Management position at the time regarding whether she was qualified or unqualified for the appointment.  It would have been useful if a representative from the Board of Management was in attendance at the time to clarify this issue but I also note that it was not disputed that it is the Department of Education who is the correctly named respondent for this instant complaint.

The complainant’s contract of employment refers to the complainant’s entitlement to the common basic scale which was accepted at the hearing, as meaning the qualified rate of pay for a teacher.  The respondent submitted that the school erred in their inclusion of this clause in the complainant’s contract.  It was further submitted by the respondent that Mr X, Senior Counsel, who also referenced this part of the complainant’s contract in his decision to award a CID, operated outside of his remit.  It is noteworthy that the respondent was certainly aware of this clause in the complainant’s contract back when Mr X issued his decision on the CID and did not raise any alleged inaccuracies until the day of the hearing.

While “wages” is defined in Section 1 of the Payment of Wages Act; in Sullivan v Department of Education PW 2/1997 (reported at [1998] E.L.R. 217), the Employment Appeals Tribunal took the word “payable” to mean “properly payable”.   Remuneration “properly payable” was also emphasised by Finnegan P. in Dunnes Stores (Cornelscourt) Ltd v Lacey [2007] 1 I.R. 478 and in MacGrath J. in Balans v Tesco Ireland Ltd [2020] E.L.R 125. It is also important to consider Section 4(6) of the PWA. In Sullivan v Department of Education PW 2/1997 (reported at [1998] E.L.R. 217) the Employment Appeals Tribunal held that, “if an employee does not receive what is properly payable to him or her from the outset then this can amount to a deduction within the meaning of the 1991 Act”.

As set out in this decision, there has been conflict between the parties including around the interpretation of: various circulars, the term “sector”, the complainant’s appointment form, the complainant’s contract of employment and whether the monies are properly payable to her.  However, parties did agree that a qualified teacher must be

“registered with the Teaching Council”

and

“have qualifications appropriate to the sector and suitable to the post for which s/he is proposed”.

The respondent submitted that if the complainant was to succeed in her claim then that could mean anybody with any qualification could secure employment teaching.  I do not find any merit in that claim.   By the respondent’s own submission, the Teaching Council, has been established through statute, to stringently review applicants and register teachers they are satisfied meet the relevant criteria.  Having reviewed the complainant’s qualifications, the Teaching Council have clearly established that the complainant satisfies the criteria of being “registered with the Teaching Council” and that the complainant has qualifications “acceptable for teaching pupils/students with special education needs in post-primary schools”.  I find that this also satisfies the relevant Circulars as thecomplainant is acceptable as suitable by the Teaching Council to teach special education needs in post-primary schools.  Furthermore, the complainant’s contract of employment, which the respondent were aware of and did not raise any formal objection to, prior to the hearing, provides for the complainant to be paid the common basic scale.

Based on all the evidence and submissions I must, therefore, find in favour of the complainant and that her complaint is well founded and find that the monies properly payable to her during the cognisable period, 22nd July 2020 to 21 January 2021, are at the qualified post-primary school teacher rate of pay.

Based on all the evidence and submissions I must, find in favour of the complainant and that her complaint is well founded and find that the monies properly payable to her during the cognisable period, 22nd July 2020 to 21 January 2021, are at the qualified post-primary school teacher rate of pay.

Payment of wages, qualified teacher