Complainant

Respondent

Parties

Carmel Henehan

Department Of Education And Skills

Complainant

Respondent

Anonymised Parties

Representatives

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-00042595-001

19/02/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00042595-002

19/02/2021

In her complaint form the claimant asserts that the respondent is in breach of the Act for failing to pay her an annual allowance of €2437.00 in recognition of her Special Educational Needs (SEN) Postgraduate course .She contends that the allowance should have been paid from the 30th.June 2017 and states that she is working side by side with other colleagues who are in receipt of this allowance. She further contended that the respondent was in  breach of the Act for failing to pay her  an annual allowance of €5785 in respect of a Masters Course in SEN due from the 1st.September 2018. The respondent submitted that the complaints were out of time , that the non payment of the allowances were not an illegal deduction under the Act and that the allowances were  abolished for any course of study which commenced after the  5th.Dec. 2011.

The claimant’s representative submitted as follows :

The claimant  is a Primary school teacher with 38 years’ Irish and International experience currently working in the area of SEN and Reading Recovery in St. Edward’s NS, Ballytivnan, Sligo. She has been in St. Edward’s NS a DEIS 1 school since Sept 1999 – so is 22 years in this particular school. DEIS is the most recent national programme aimed at addressing the educational needs of children and young people from disadvantaged communities. She received an AP 2 promotion there in the year 2,000 (which currently entitles her to an allowance of €3,967 per year). 

In recent years she has worked as a Special Education Teacher (SET) in St. Edward’s NS. Since completing the SEN course her AP2 leadership role has changed to that of SEN co-ordinator. This involves taking responsibility for co-ordinating Special Education Needs throughout the school. As part of this leadership role, she is responsible for leading the SEN team and interacting with classroom teachers to maintain the highest standards.

Summary of Employment History

Education & Professional Development.

In Sep 2016 The complainant undertook a postgrad course followed by a Masters in Special Education Needs (SEN) in order to better provide for the children she teaches. That was her primary motivation in taking on this course. However, she is unhappy that she receives no recognition in the form of increased allowances even though these allowances are payable to other teaching staff - some of whom work alongside her - and who in many cases are younger than her.

Background to the Case

The Dept of Education and Science no longer gives specific allowances to teachers who engage with further education to obtain postgrad diplomas or Masters. However, those who were in receipt of such allowances prior to 2012 still receive them. In addition to this, younger teachers who have qualified since 2012 have a different salary scale which rises €3,268 above the complainant’s.  See table No 1 attached:

·       She undertook the course Postgrad in SEN - Special Educational Needs in Sep 2016 finishing it in June 2017 obtaining - Diploma in Special Education - level H1. This course is considered necessary or advisable in order to work specifically in the SEN area in schools and to support the inclusion of children with special needs into regular classrooms and therefore is promoted by the Department of Education. There is an expectation from principals generally in schools that teachers will undertake the course - which was also the case in this instance. As she was already working as a Special Education Teacher (SET) in the school she felt that this course would enable her to better provide for the children in her school - which is a DEIS Band 1 school – a school with designated disadvantage status at the highest level. Since completing this course she has responsibility for the overall supervision of SEN in the school.

●      Prior to 2012 there was a yearly pensionable allowance payable to all those who achieved the SEN diploma (first part of a level 9 award). However, see Circular 0008/2013 - this allowance was removed for all those who received the diploma post 1 Feb 2012.

●      She continued to engage with the follow-up study to achieve a level H1 in Masters in Special Education (SEN) completed in August 2018. She completed this course as she felt that this qualification would further increase her ability to support children with needs in the Deis 1 school where she teaches.  She paid for the cost of fees for this course from her own funds. There had been a yearly pensionable allowance payable to all those who achieved a Masters degree which was also removed for those who achieved it post 1 Feb 2012 - see the same above circular (0008/2013). 

The Claims

The claims set out in our appeal relate primarily to anomalies created by the reversal of the Financial Emergency Measures in the Public Interest (FEMPI), which were implemented in the period 2009 –15.  In summary the reversal of the FEMPI measures created anomalies which impacted negatively on the claimant and left her in a worse financial situation than if she was appointed to her role today.  Clearly, we welcome the reversal of those FEMPI provisions however the claimant never expected that in doing so she would be heavily financially disadvantaged by the manner of those reversals.

Claim No CA – 00042595 –002 – Claim No 2

This claim relates to the financial consequences for the claimant in relation to the reversal of the FEMPI provisions (based on amount applicable at Oct 2020 as per - Circular 0060/2020) which restored new entrants to the profession to the former pay scales – however in doing so the Department also awarded new entrants an honours allowance and ignored her specialist SEN Qualifications up to Level 9 – Masters. This had the effect of disadvantaging the claimant who has a master's degree qualification in the Special Needs field and who was in receipt of a pass degree allowance before FEMPI. In summary the claimant could not avail of the Honours Degree allowance built into the FEMPI reversals for new entrants. Furthermore, she has received no recognition beyond a pass degree allowance while new entrants are awarded the equivalent of an honours degree.

This is a quote from Circular 0060/2020 regarding the New Entrant Salary Scale - See Page 4 Notes - Point 3 - “3. The value of an honours degree allowance is incorporated into each point of this scale”.

The financial impact of these two claims on the claimant are set out in this submission in Table No 1 below attached to this submission.

Remedies Sought

The claimant recognises that one solution is optimum in the resolution of both claims, and that both claims cannot be dealt with separately.  Therefore, the claimant seeks the payment of the difference between her salary with pass allowance (€67,527) and the new entrant salary with Honours allowance (€70,795) which amounts to €3,268 (These amounts have been marginally increased since the 2020 circular).

Therefore, the claimant seeks payment of the equivalent of the Honours degree allowance to bring her salary on a par with that of new entrants: that is 

from the date of the Department Circular Letter No 0060/2020 (1 Oct 20) and the application of that award to the computation of the claimant’s pension calculations.

Summary & Conclusion

This case is very simple – in that the Dept withdrew certain allowances under FEMPI – which was reasonable at the time and the complainant has no issue with those emergency measures.  However, she had a reasonable expectation that at some point in the future those allowances would be restored.

The INTO went into negotiation with the Dept with the objective of seeking higher salary scales – especially for new entrants in lieu of allowances and that again was perfectly understandable. However, in agreeing these new scales (With a built in Honours Degree allowance) they created certain anomalies which in this case represent a significant financial loss for the claimant.

The Department of Education and Skills (DES) implemented the FEMPI measures by curtailing various allowances for teachers as part of their cost reduction programme. Not all allowances were cut – as set out in the Circular of 2013, which gave effect to those cuts.  Those staff already in receipt of certain allowances maintained them.

DES restored some of those curtailed allowances in the Circular of 2020 by adjusting the basic pay scales to incorporate an Honours Degree allowance into the basic rates. This was a restoration of the Honours allowance – albeit under the guise of an adjustment of the basic pay scales.

All during this time teachers were encouraged to continue their professional development and acquire new skills and qualifications in the field of Special Education Needs.  The claimant is employed in a DEIS 1 School with a dire need for Special Education Needs teachers. She went on to complete her Masters and gained that qualification in 2018.

In the process of removing and restoring certain allowances DES were very selective and there is no obvious rationale for some of those changes. For example, they removed and restored the Honours degree allowance – a lesser qualification than a Masters in SEN? 

The claimant makes a simple, straightforward and personal claim: to be paid her salary + a Master’s Degree Allowance applicable from the date of the 2020 Circular. This claim puts her on parity with new entrants to the profession and eliminates her “anomaly” created by the removal and restoration of allowances.

This loss represents a “Deduction” under the Payment of Wages Act – as the net result is a loss of income for the claimant – which in plain English is a deduction. In addition, the Dept are not compliant with the spirit of the Act – if they suggest our claim is not covered under the terms of the Act.

The claimant reserves the right to adduce further information at the hearing.

Tables & Appendices

Summary Table of Academic Allowances Payable to Three Cohorts as listed in columns: Figures taken from 0060/2020. The central column refers to The complainant’s current entitlement as at Oct 20:

Notes:

The final row above shows the annual loss and how The complainant has been financially disadvantaged in comparison to two different colleague cohorts, i.e., those who achieved qualifications pre-FEMPI (pre- 2011) and New Entrants (those appointed since 2011) who benefitted from enhanced salary scale by means of incorporating the Honours Degree Allowance into basic pay (the Department of Education have chosen to restore one allowance but not others) and, consequently, The complainant has fallen between ‘two stools’ due to the inconsistent and unfair approach adopted by the Department relating to decisions - firstly to disallow, and later, restore allowances in a discriminatory manner.

Column 1 shows Salary Projection/Expectation for Teachers employed pre-FEMPI with the same qualifications.

Column 2 shows The complainant’s current salary - maximum of salary scale plus Pass Degree Allowance with no recognition of qualifications received in 2017 and 2018.

Column 3 shows enhanced salary scale for New Entrants as part restoration of FEMPI with recognition of qualifications built in.

In a post hearing submission on the relevance or otherwise of the case of the HSE v McDermott on the 19th.June 2014 IEHC 331 , the claimant’s representative submitted as follows :

 “A response to DES Defence presented to WRC takes the form of reference to each main point from DES followed by The complainant’s responses underneath.

And A Reference to the Case McDermott V HSE

DES Defence:

1 Preliminary Point

The Department asks the Adjudication Officer to make a determination on a preliminary point at the outset, before proceeding to hear the substantive complaint.

Out of time

In the complaint form, the dates of the alleged unlawful non-payment of the additional qualification allowances are given as with effect from 30/06/20171, in the case of the Special Education Needs (SEN) allowance and with effect from 01/09/2018 for the honours Master’s Degree Allowance3. The Adjudication Officer is asked to note that the complaint was not lodged with the WRC until 19/02/2021 and also that the WRC drew my attention to this by email on 3rd March 2021.

The complainant’s Response 1 Preliminary Point and Out of Time

She wishes to make it clear that initially, she referred to the above dates - however, the claim lodged was actually against circular 0060/2020 which was made clear in her response letter to the WRC and was accepted by them - a response letter which the DES have not posted. A copy of this letter is available if required. The claim being taken is not from the dates above - of achieving the qualifications:

She accepted that payment of allowances for these awards was cut in the Fempi Circular 0008/2013. Her claim is against Circular Letter 0060/2020 and the non-re-payment of these awards. She had a reasonable expectation that these awards would be re-instated in this circular, as circular 0008/2013 - withdrawals of allowances were deemed emergency budget measures at the time.

See extract from circular 0060/2020 (REVISION OF TEACHER SALARIES WITH EFFECT FROM 1 October 2020) below:

Page 2: ‘10. This circular also provides for the restoration of fixed allowances which are set out at Appendix 3 with effect from 1 October 2020. Please read in association with Circular 0008/2013 Public Service-Wide Review of Allowances and Premium Payments on current allowance entitlements.

It should be noted that certain allowances for new beneficiaries were abolished with effect from 1 February 2012 and their appearance in the attached pay scales does not confer an entitlement to the allowance where the staff member was not already entitled to the allowance.’ 

The allowances referred to above were those that were in respect of academic awards that she had recently achieved and that she had expected to be re-instated in this pay restoration circular.

Her claim dated 19/03/21 was less than 6 months from the publication of the circular (0060/2020) - in Oct 2020so was within the time frame allowed.

The Department also make the claim that she didn’t respond within 14 days to the WRC in this process. The WRC had suggested that if a response was not received within 14 days they ‘may assume’ that she was not interested in continuing with the claim. She did not take this comment as a constraint to a definite time limit of 14 days. As it was her response was acknowledged by the WRC on day 15.

The DES also suggest that there is no ongoing contravention see below:

“Ongoing contravention - Time

The concept of a continuous breach, or ongoing contravention, may arise in instances where a particular act is occurring repeatedly. There is no such repeated act here. A single decision was made in relation to eligibility for qualification allowances and the outcome duly advised to Ms Henehan”.

The complainant’s response to this:

She feels that there is an ongoing contravention in this case as she is working side by side with three different cohorts of teachers who are receiving higher salaries than her: Firstly, those who receive the SEN Postgrad allowance, secondly, those in receipt of the Masters allowance and also thirdly, younger teachers - entrants since 2011 who receive an honours allowance allocated by means of a higher wage - although they have not completed any extra academic courses. See her submission 0f 7 Feb - Page 5 (“3. The value of an honours degree allowance is incorporated into each point of this scale”). The quote here in brackets is in regard to new entrants - from Circular 0060/2020 - Page 4 Notes - Point 3 regarding the New Entrant Salary Scale.

We wish to contend that this above anomaly is an ongoing contravention.

The DES go on to state the following:

“…Minister for Education, with the concurrence of the Minister for Public Expenditure & Reform, has  authority to determine the terms and conditions of employment, (including remuneration), for teachers  paid from monies provided by the Oireachtas. 

The employment terms & conditions for teachers, as determined and approved by the Ministers in question,7are statutorily underpinned by Section 24 of the Education Act.8

….

2. FEMPI and Public Service Pay Agreements

As set out in Appendix 11, a number of measures were enacted by Government to reduce public expenditure so as to stabilize the country's public finances. The Financial Emergency Measures in the  Public Interest (FEMPI) Act 2009 established the criteria for reducing the pay of public servants,  including teachers, with effect from January 2010. Successive negotiated pay agreements such as the Lansdowne Road Agreement, Haddington Road Agreement and the Public Services Stability  Agreement have resulted in the gradual unwinding of FEMPI measures and enabled a programme of  pay restoration for public servants (including teachers). Public Service Pay Agreements are a collective  agreement between the Government and the Public Services Committee of the Irish Congress of Trade  Unions. As is the norm with public service agreements, these agreements are negotiated with trade  unions which are recognised as representing staff in the public service….

The complainant’s Response to the above:

The DES state that “Successive negotiated pay agreements such as the Lansdowne Road Agreement, Haddington Road Agreement and the Public Services Stability Agreement have resulted in the gradual unwinding of FEMPI measures and enabled a programme of  pay restoration for public servants (including teachers)”

Her claim relates to the fact that in the “gradual unwinding of FEMPI measures some allowances were restored while others were not and this resulted in her situation where an anomaly has been created. Therefore, she is unable to access any of the allowances listed in her claim and is furthermore discriminated against by virtue of the fact that new entrants are awarded the honours allowance by virtue of a pay scale that is higher than hers. 

The DES state on page 7 that ‘By 2018, this included a measure to compensate new entrants on lower pay to have the value of the Honours Primary Degree  Allowance included in their basic pay – it is not paid as a separate allowance’ and on page 8 that ‘the post-February 2012 entrant group have broadly the same basic salary as the other two groups.  However, in accordance with the outcome of the Public Service review of allowances in 2018, they are not paid any qualification allowances whatsoever’.

The complainant’s response:

As can be seen from the appendix table in her original submission the incorporation of the honours degree into their payscale does offer them a higher final amount than The complainant on the salary scale (- €3,268 more per annum). (See table page 7 of her submission dated 7th Feb).

The DES also state ‘It is not tenable, or accepted practice, to negotiate either with individual employees, or employers’.

Response:

The complainant accepts that negotiation with collective groups is the ideal - However, she wishes to state that this is not her first attempt to have her situation resolved. She wrote to the Dept of Education and approached the INTO many times about her situation before taking recourse to the WRC.

The DES state as follows:

“…she had a reasonable expectation that at some point in future those allowances would be restored.”

However, Ms Henehan’s submission does not expand on what gave rise to any such reasonable expectation on her behalf, or at what point in the future that restoration might occur?

Response:

As the measures introduced to remove allowances took place as a result of FEMPI - she had a natural expectation that when the situation which gave rise to the cutbacks had eased the allowances would be restored. The complainant completed further academic study while the allowances were not payable as she felt that the children she worked with would benefit greatly from this training. Also, teachers were encouraged to continue their professional development and acquire new skills and qualifications in the field of Special Education Needs.  As she is employed in a DEIS 1 School with a dire need for Special Education Needs teachers mentioned in her submission of 7 Feb it was of great benefit to the children and to the school where she now uses those skills to oversee the running of SEN in the school.

In this case she wishes to draw attention to the anomaly created as referred to in her submission where she receives a lower final salary than other cohorts of teachers due to the withdrawal of allowances and the re-instatement of some allowances in the form of salary increments which she is ineligible for. 

Response to the Case McDermot v the HSE

There are clear parallels between the case referenced above and the claims made in The complainant’s case.

Those parallels include the following: 

1.     The standard proforma employment contract issued in both cases,  

2.     The adjustment of salary by way of ministerial order on foot of a collective agreement,

3.     A similar case of union negotiation on behalf of the general body of members.

In our case there is an implied term of the employment contract that employee will be paid the appropriate rates of pay as determined by the Minister. Also, by implication that those rates of pay will not disproportionately disadvantage the employee – especially in the restoration of FEMPI allowances.  

Moreover, in the reference case McDermott V the HSE the Tribunal found that 

“” That an unlawful deduction occurred under Section 6 of the Act in that any deduction must have the consent of the employee in writing and that consent must be in writing. There is no provision in the contract, which allows for the employer to make a deduction of salary. Accordingly, the non-payment of a portion of the appellant's salary is a deduction..............” 

While the exact circumstances in both cases differ, the main issues are still very relevant: a deduction or loss of salary, the loss of an allowance, a collective agreement, the restoration of FEMPI deductions the implied right to fairness and the spirit of the Payment of Wages Act.

Therefore, we contend that the McDermott V HSE judgment sets a benchmark in relation to the payment of salary scales and any salary reductions by way of Ministerial order – Such as FEMPI. And those same parallels apply in the case of this claimant.

In our case, the claimant had a proforma or general contract of employment which covered salary and allowances payable in a general sense – which was never updated. Therefore, the tribunal judgement in the McDermott case was straightforward and clear in relation to awarding the salary offered as per contract. Moreover, that salary should not have been reduced (without prior written permission). And furthermore, the restoration of the FEMPI cuts –   exacerbated the situation.

The claimant in this case was in a similar position to McDermott and therefore the same rules apply. The salary deduction was deemed unlawful – as it was not consented to in writing and furthermore the restoration of her allowances was not straightforward, and the methodology employed compounded the loss to the claimant.

We are appealing for fairness of pay as per her submission

See Appendix No 1 attached – Copy of the Claimant’s Employment Contract.”

The claimant’s representative was adamant that the complaint was in time on the basis that the nonpayment /restoration of the allowance constituted an ongoing breach of the Act.It was advanced that the collective negotiations resulted in an anomaly that significantly disadvantaged the claimant.It was submitted that the payment of the allowance constituted wages properly payable under the Act.

The respondent’s representative submitted as follows :

 Submission of the Department of Education

Complaint

These complaints are brought under Section 6 of the Payment of Wages Act 1991. The complainant Tiernan Henehan is a primary school teacher employed in St. Edwards NS, Ballytivan, Sligo (Roll No. 17277O). Ms Henehan alleges that she is being paid less than the amount due to her. The Department is contesting this claim on the basis that it is out of time, that a breach of the Payment of Wages Act has occurred, or that Ms Henehan has been paid less than the amount due to her and our position will be outlined herein.

Preliminary Point

The Department asks the Adjudication Officer to make a determination on a preliminary point at the outset, before proceeding to hear the substantive complaint.

Out of time

In the complaint form, the dates of the alleged unlawful non-payment of the additional qualification allowances are given as with effect from 30/06/2017, in the case of the Special Education Needs (SEN) allowance 2 and with effect from 01/09/2018 for the honours Master’s Degree Allowance3. The Adjudication Officer is asked to note that complaint was not lodged with the WRC until 19/02/2021.

Section 41 of the Workplace Relations Act 2015 sets out the time limits for presentation of complaints and referral of disputes. Section 41(6) provides as follows:

41(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.’

Section 41(8) provides for a time extension of a further 6 months where the Adjudication Officer is satisfied that delay in presenting complaint was due to reasonable cause:

“41(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.”

In view of the fact that the complaint, when lodged with the WRC, was more than 6 months after the date of alleged contravention, the Department contends that the complaint was already out of time; unless the Adjudication Officer is satisfied that the reasonable cause provisions pertain in this instance, in which case, the time limit can only be extended by a further 6 months, giving a maximum period of 12 months, in total,from the date of alleged contravention.

The established test for deciding if an extension should be granted, for reasonable cause, was formulated by the Labour Court in Determination DWT0338.4 Where an Adjudication Officer decides to consider a request for extension of time, the onus is on the complainant to satisfy the Adjudicator:

i. Firstly, that the reason(s) relied upon both explain the delay and provide a justifiable excuse for same;

ii. Secondly, that a causal connection exists between the reason proffered and the failure to apply in time;

iii. Thirdly, that as a matter of probability, the complaint would have been presented in time but for the intervention of the factor(s) proposed as having directly caused delay in lodgement of complaint.

Department Submission to the WRC

 4 Labour Court in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. In its Determination, the Court notes at the outset that: “In this case the respondent made no defence to the claim other than to contend that the complaint was presented out of time.” The Court also observes in relation to time limits: “It is now clear that the limitation period… starts to run from the date on which the contravention complained of actually occurs. This was made clear by the High Court in Royal Liver Assurance Limited v Mackin & Others High Court Unreported Lavin J, 15th November 2002.The rationale of that decision appears to be that… the limitation period runs from the date on which the payment should have been made.”

Ongoing contravention - Time

The concept of a continuous breach, or ongoing contravention, may arise in instances where a particular act is occurring repeatedly. There is no such repeated act here. A single decision was made in relation to eligibility for qualification allowances and the outcome duly advised to Ms Henehan.

The matter for adjudication here is one standalone decision, by virtue of which Ms Henehan was found to be ineligible for allowances claimed. That should not be seen, or portrayed, as a ‘new’ decision being made on different instances, each and every time that salary payment is generated by the Teachers’ Payroll. The reality is that nothing new occurred in the 6 months prior to the lodgement of this complaint, to bring it within the time limits set out in statute.

Should Ms Henehan seek to contend that there is some kind of ongoing contravention here (that is restarting the clock on the date of alleged contravention, and that therefore the complaint is somehow exempt from the statutory time limits), it is submitted, with respect, that such argument is without foundation and would lead to a situation where the time limits purposely and expressly imposed by statute are simply set aside. Were such an interpretation to succeed, it would effectively undermine the establishment of a time limit by the Oireachtas, for complaints of this nature.

Section 5 of the Interpretation Act 2005 requires a literal interpretation of legislative provisions, unless the statutory provision in question is obscure, ambiguous, or where a literal interpretation might lead to an absurd result which fails to reflect the plain intention of the Oireachtas:

“…the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.”

Compliance with statutory time limits is a mandatory pre-condition to the exercise of jurisdiction by the Workplace Relations Commission.

On the basis of the above, the Department asks the Adjudication Officer to consider the following question:

In view of the facts outlined above, is this complaint not out of time? The Department submits that when interpreted literally, the statutory provisions around time limits here are sufficiently clear and that this claim has been brought outside of the permitted time limits. It is also noted that the Complainant’s Submission to the WRC does not appear to address the issue of time. It is a matter    for the claimant side to first convince the Adjudication Officer that their complaint is ‘in time’ before the substantive complaint can be heard. 

Ms Henehan is certainly aware that there is a time issue relating to her complaint, as the WRC drew this to her attention by letter dated 3rd March 2021, in the following terms:

“I acknowledge receipt of the above complaints… An Adjudication Officer cannot entertain a complaint under the Payment of Wages Act, 1991 if it has been presented after the expiration of the period of 12 months beginning on the date of the contravention to which the complaint relates. It would appear from the information submitted by you that this complaint was submitted outside of the 12 months statutory timeline.

An Adjudication Officer has no power to extend the time limit beyond 12 months.

If you consider that your complaint was presented within 12 months, you may make a submission accordingly… within 14 days of the date of this letter. Should a response not be received by the Commission within that time, the Commission may assume that you no longer with to proceed with this complaint.”

It is clear therefore that Ms Henehan had been given 14 days from the date of the WRC letter (3rd March) in which to respond. Ms Henehan’s response to the WRC was made by email at 21:43 on 18th March 2021:

The Adjudication Officer is also asked to consider whether an 18th March 2021 response is actually within the 14 days permitted for replying to a letter dated 3rd March 2021? The Department would argue that, not alone is this complaint out of time, but Ms Henehan’s response to the WRC, in relation to the time issue, was itself outside the 14 days allowed for same.

Defence to substantive complaint

The Department will now proceed to set out our case in regard to the substantive matter. It is noted at the outset that the qualification allowances sought in this complaint are not a statutory entitlement of any sort. The criteria for establishing entitlement to such allowances are  as  determined by the Minister for Education , pursuant to statutory powers under the Education Act.

 Payment of Wages Act

Section 5 of the Payment of Wages Act deals with deductions from the wages of an employee. Section 5(6) defines a deduction. 5 On page 8 of her Complainant Submission to the WRC, Ms Henehan makes reference to having “been financially disadvantaged in comparison to two different colleague cohorts…” and that she has “fallen between ‘two stools’ due to the inconsistent and unfair approach adopted by the Department relating to decisions firstly to, and later, restore allowance in a discriminatory manner”

 r5 5(6) Where 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 there from that fall to be made and are in accordance with this Act), or 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.

6 As amended by the Education (Amendment) Act 2012

7 The Minister for Education & Skills and the Minister for Public Expenditure & Reform

8 Amended by the Education (Amendment) Act 2012

In her 18th March 2021 email to the WRC, Ms Henehan makes reference to inequality. It is noted in relation to the above, that complaint here has been made here under the Payment of Wages Act, not under any Equality legislation. The Adjudicator must firstly determine whether Ms Henehan has made a convincing argument that brings her complaint within time and secondly, (if the complaint is deemed to be in time), whether or not, there is any unlawful deduction from salary.

1. Terms & Conditions of Employment - Role and Authority of the Minister for Education

The Functions of the Minister are as set out in Section 7 of the Education Act, 1998 (as amended by the Education (Amendment) Act 2012). Pursuant to Section 24 of the Education Act 1998,6 the Minister for Education, with the concurrence of the Minister for Public Expenditure & Reform, has authority to determine the terms and conditions of employment, (including remuneration), for teachers paid from monies provided by the Oireachtas.

The employment terms & conditions for teachers, as determined and approved by the Ministers in question,7 are statutorily underpinned by Section 24 of the Education Act.8 The Department publications/circulars setting out those terms & conditions are thereby instruments made under statute.

For the purposes of terms and conditions of employment, the most relevant Sections of the Education Act are Section 24 (3) and 24 (6). Section 24 (3) provides that:

“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.” [Emphasis added]

Section 24 (6) contains the relevant remuneration provision:

“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.” [Emphasis a dded]

Once approved by the Ministers concerned, the terms & conditions of employment for teachers paid from monies provided by the Oireachtas are as stated in the relevant Department of Education publication. These terms & conditions apply to all such teachers, including Ms Henehan.

It is clear therefore, that the Minister has the authority to set the rates of pay in the first instance, and furthermore to determine the qualifying criteria for any additional allowances of pay. It is the long-established, standard and accepted practice of this Department to use a centralised approach when determining the terms and conditions of school staff paid by the Department. It is not tenable, nor the practice of the Department, Management Bodies, or Trade Unions to engage with individual teachers when negotiating terms and conditions of employment.

2. FEMPI and Public Service Pay Agreements

As set out in Appendix 11, a number of measures were enacted by Government to reduce public expenditure so as to stabilise the country's public finances. The Financial Emergency Measures in the Public Interest (FEMPI) Act 2009 established the criteria for reducing the pay of public servants, including teachers, with effect from January 2010. Successive negotiated pay agreements such as the Lansdowne Road Agreement, Haddington Road Agreement and the Public Services Stability Agreement have resulted in the gradual unwinding of FEMPI measures and enabled a programme of pay restoration for public servants (including teachers). Public Service Pay Agreements are a collective agreement between the Government and the Public Services Committee of the Irish Congress of Trade Unions. As is the norm with public service agreements, these agreements are negotiated with trade unions which are recognised as representing staff in the public service (including teachers). Any additional amendments to teachers’ terms and conditions, including pay and allowances, may be achieved through engagement and collective bargaining agreements between the Government and the public service unions. It is normal industrial relations practice in the public service that the decision of the trade union recognised as holding representative rights for a particular grade or sector will determine the position for all relevant staff in that grade/sector. This context does not allow for acceptance or rejection of collective agreements by staff on an individual basis.

Allowing for acceptance or rejection of collective agreements by staff on an individual basis would not be consistent with the collective approach taken to public service pay agreements to date. In addition, it could also give rise to issues around the negotiation of change and industrial relations agreements on an individual basis with every public servant. It would also give rise to the converse question of whether individual union members would be allowed to opt out of agreements reached by their union.

3. Teachers Conciliation Council (TCC)

The Teachers Conciliation Council (TCC) forms part of the Scheme of Conciliation and Arbitration for Teachers, the purpose of which is to provide a forum for claims and proposals relating to the salary, and other terms & conditions of service, for teachers paid from monies provided by the Oireachtas.

The Council is comprised of representatives from the Teacher Unions, the School Management Bodies, the Department of Public Expenditure and Reform, and the Department of Education. The TCC is independently chaired by an official of the Workplace Relations Commission.

The terms and conditions of teachers employed in State funded teaching posts are formulated at TCC and are of general application to all teachers appointed to such posts, including Ms Henehan. The allowances, at the centre of this complaint, existed by virtue of a collective agreement, concluded under the auspices of TCC.

4. Payscale Difference

Part of the negotiation of public service pay agreements to date has secured a convergence of the scales of recruits at different periods and a move towards equal pay for teachers. By 2018, this included a measure to compensate new entrants on lower pay to have the value of the Honours Primary Degree Allowance included in their basic pay – it is not paid as a separate allowance. This meant that, effective from 1st January 2018, the starting pay of a new entrant teacher was now €35,958 compared to pre-2011 entrants who would have commenced at the 2nd or the 3rd point on the pay scale (€35,910/€35,989 respectively)9. However, in accordance with the outcome of the Public Service review of allowances in 2018, new entrant teachers were not entitled to other qualification allowances which were still available to pre-2011 teachers.

The Haddington Road Agreement included a provision for new entrant salary scales to address the imbalance between those who entered the Public Service since 2011 and those who entered before that date. Two point were added to the new entrant scale so that the maximum was more or less the same as that group, and also very similar to the maximum for the pre-2011 group. The effect of this is that Department Submission to the WRC the post-February 2012 entrant group have broadly the same basic salary as the other two groups. However, in accordance with the outcome of the Public Service review of allowances in 2018, they are not paid any qualification allowances whatsoever.

 9 Circular 0083/2017: Revision of Teacher Salaries with effect from 1 January 2018 refers

5. Department Circulars

Accordingly, agreed terms and conditions are set out and communicated via circular letter. This is the most appropriate and efficacious manner to disseminate information to employers and employees for further dissemination (via Management Bodies and Chief Executives of ETBs and Trade Unions). It is not tenable, or accepted practice, to negotiate either with individual employees, or employers. The use of circulars is a long established practice within the Department of Education. 

10 There are circulars in the Departmental archives going back to early in the last century

11 Circular 0003/2012 is titled: Budget 2012 – Public Service-Wide Review of Allowances and Premium Payments

Circulars are typically addressed to Managerial Authorities of Recognised Schools. School authorities are instructed to bring circulars to the attention of relevant staff in their employment. This practice is used to notify teachers and other members of staff of a recognised school of their employment terms and conditions. Circulars are copied directly to Teacher Unions and Management Bodies when they issue. All Department circulars are published and available to all education personnel on the Gov.ie website.

6. Diploma in Special Education

The scheme for the award of Special Needs Allowances to recognised teachers in Primary Schools is set out in Circulars 21/05 and 0008/2013. Circular 21/05 provided, inter alia, that in order to qualify for a SEN allowance a teacher must:-

 have a recognised Graduate/Higher Diploma in Special Education, and

 hold a full time position in a sanctioned post in an area of special education.

7. Public Service wide review of allowances and premium payments

The Public Service-wide review of allowances was carried out by the Department of Public Expenditure and Reform, on foot of a Government Decision in the context of Budget 2012. Circular 0008/2013 outlines the outcome of the Government’s review of qualification allowances and decision to abolish same for new entrants. As set out in the Introduction to Circular 8/2013:

“Circular 3/2012 11 withdrew sanction to pay certain allowances to new beneficiaries with effect from 1 February 2012, pending the outcome of a public service wide review of

allowances and premium payments. This Circular is the outcome of that review as it applies to Teachers, as decided by the Government. This Circular supersedes Circular 3/2012 (as it applies to Teachers) and Circular 70/2011.”

Post based allowances, such as the SEN allowance, were abolished for new entrants to the scheme, with effect from 1 February 2012. It was also determined that in the case of a number of post based allowances, including the SEN allowance, that the allowance would be lost if a teacher changed school/employer on or after 1 February 2012 on a voluntary basis. Furthermore, under the terms of the Circular, any course of further study which commenced after 5th December 2011 does not attract a qualification allowance.

  11 Circular 0003/2012 is titled: Budget 2012 – Public Service-Wide Review of Allowances and Premium Payments

12 Appendix II to this submission sets out the background on the financial position which led to these allowances being discontinued.

Relevant Extracts from Circular 0008/2013

Qualification Allowances

“12. In the case of persons first employed in a qualified (and for appointments after September 2010, registered) capacity in a teaching position in an Oireachtas funded post on or before 4 December 2011 qualification allowances are payable in respect of qualifications acquired on or before 4 December 2011. No allowances are payable should the individual acquire a further qualification regardless of the purpose of the qualification or the date of commencement of the course of study. The sole exception to this general position arises where as at 5 December 2011, a teacher in employment on that date and eligible for receipt of a qualification allowance in respect of the post they held on that date, was actively undertaking a course of further study leading to an additional qualification, provided that the teacher does not cease to be a registered student on that course before its completion.”

“Diploma in Special Education (SEN)

Note: A teacher cannot gain or regain entitlement to the SEN allowance after 1 February 2012:-

“19. In respect of the allowances listed at Paragraph 18 (a) to (i), a teacher cannot gain or regain entitlement to the allowance on or after 1 February 2012, as these allowances are withdrawn for new beneficiaries with effect from that date”.

“22. The allowance for holders of the Diploma in Special Education/Diploma for Teachers in a specific disability category is payable where the teacher holds an eligible post on or before 31 January 2012 and has completed or was actively undertaking a relevant course of study in accordance with Paragraph 12 above.”

Employment History

Ms.Henehan was first employed in a qualified capacity in a teaching position in an Oireachtas funded post in SN Bhríde Jnr., Baldoyle Co. Dubllin (Roll No. 1948G) on 14/01/1985.She worked there in a temporary capacity until 28/06/1985.

She took up another temporary teaching position in Neillstwon N.S., Neillstown Road , Clondalkin, Dublin 22 (Roll No.195690) on 02/09/1985.She worked there until 15/09/1985.

She took up a permanent teaching position in Darndale NSJnr., Darndale , Malahide Road , Dublin 17 (Roll No. 19454U).She worked in a permanent capacity n a number of different primary  schools  from then until 31/08/1999.

 She took up a permanent teaching position in St. Edward’s N.S., Ballytivnan, Sligo on 01/09/1999 (Roll No. 17277O) and has been teaching there in a permanent capacity to date.

9. Case Specifics

Complaint CA-00042595-001 relates to the SEN Allowance while complaint CA-00042595-002 relates to the Master’s Degree Allowance. Ms. Henehan qualified as a primary teacher in 1983 with a pass B. Ed. degree award. She is currently on the pre-2011 pay scale and, in addition to her salary, she is in receipt of a pass primary degree allowance in respect of her pass B. Ed. degree award, (currently €1,958 per annum)13. She has been in receipt of this allowance with effect from her date of first appointment on 14/01/1985.

13 As of October 2021 – Circular 0056/2021 – Revision of Teachers’ Salaries with effect from 1.10.20211

According to the details in the complaint, Ms. Henehan completed:

 a one year post graduate Diploma course in Special Educational Needs (SEN) in 2016/2017, and

 she completed an honours Master’s degree course in Special Educational Needs (SEN) in 2017/18.

Consequently, Ms Henehan has no entitlement to payment of either an SEN allowance (currently €2,591 per annum) or an honours Master’s Degree Allowance (currently €5,843 per annum) as she commenced both courses of study after the cut-off date of 5th December 2011, (Circular 0008/2013 refers). Department Submission to the WRC

11

Furthermore, as the SEN allowance is a post based allowance, the Adjudication Officer is asked to note that the last cohort of SEN graduates who may have had an entitlement to payment of the SEN allowance were the 2011/12 graduates, (provided they had been in an SEN post on or before 31/01/2012).

It should be highlighted that although Ms. Henehan has no entitlement to payment of either an SEN allowance, or an honours Master’s degree allowance in respect of courses commenced after 5th December 2011, she does retain her entitlement to payment of a pass primary degree allowance, (currently €1,958 per annum). As teachers can only receive one degree allowance at any given time, if she had been eligible for receipt of the honours Master’s Degree Allowance, this would have replaced her pass primary degree allowance, the difference between the two degree allowances is currently €3,885 per annum.

10. Legitimate Expectation

In relation to the allowances sought, Ms Henehan states as follows in the Summary & Conclusion section of her complaint submission to the WRC:

“…she had a reasonable expectation that at some point in future those allowances would be restored.”

However, Ms Henehan’s submission does not expand on what gave rise to any such reasonable expectation on her behalf, or at what point in the future that restoration might occur? Reasonable expectation, or more commonly legitimate expectation, is founded on the principle of natural justice and exists to prevent a public authority rescinding from a promise made. A legitimate expectation is said to arise as a result of a promise, representation, practice or policy made, adopted or announced by, or on behalf of Government, or a public authority. It is generally accepted that, a successful claim based on legitimate expectation, must satisfy the following criteria, as set out by Mr. Justice Fennelly in the 2001 Supreme Court decision in Glencar Exploration v Mayo County Council:

1. “Firstly, the public authority must have made a statement or adopted a position amounting to a promise or representation, express or implied, as to how it will act in respect of an identifiable area of its activity. I will call this the representation.

2. Secondly, the representation must be addressed or conveyed either directly or indirectly to an identifiable person or group of persons, affected annually or potentially in such a way that it forms part of a transaction definitively entered into or a relationship between that person or group and the public authority, or that the person or group has acted on the faith of the representation.

Department Submission to the WRC

3. Thirdly, it must be such as to create an expectation reasonably entertained by the person or group that the public body will abide by the representation to the extent that it would be unjust to permit the public authority to resile from it.”

The Department has given no such commitment, directly or indirectly, regarding future restoration of these allowances that might have given rise to any reasonable/legitimate expectation.

11. Conclusion

The Department believes this complaint to be out of time but in any event, there is no unlawful deduction here, as the rate of pay to Ms. Henehan is the rate properly payable to her under the salary payment rules, as determined by the Minister pursuant to statutory powers. Of note, Ms Henehan is not treated any differently to any other teachers who entered the teaching profession prior to 2011 with regard to her rate of salary or rate or allowances. Furthermore, Ms Henehan does not qualify for the allowances claimed in her submission, as she does not meet the eligibility criteria for same.

14 The Department reserves the right to appeal any decision that this complaint is within the time allowed

In conclusion, the Department contends that Ms. Henehan has at all times received the salary which was properly payable to her under the current rules and conditions of employment. The Department respectfully submits that the claim should be dismissed on the basis of the above.

January 2022 Department Submission to the WRC

Appendix I

List of Relevant Circulars

 Circular Prim 21/05 – Payment of an allowance to recognised Teachers who hold a Graduate/Higher Diploma in Special Educational Needs.

 Circular 0008/2013 - Budget 2012 – Public Service-Wide Review of Allowances and Premium Payments

 Circular 0060/2020 – Public Service Stability Agreement 2013-2020 and the Public Service Pay and Pensions Act 2017 – Revision of Teacher Salaries With Effect From 1 October 2020.

 Circular 0056/2021 - Building Momentum - A New Public Service Agreement 2021-2022

Revision of Teacher Salaries with effect from 1 October 2021

All Department circulars are published on the Gov.ie website and available to all education personnel. These circulars instruct the School authorities to bring the circular to the attention of all teachers in their employment including those on leave. Department Submission to the WRC

14

Appendix II

Budget Cutbacks

A number of Budget decisions were taken in recent years in relation to the pay of teachers, and public servants generally, due to the worsening financial circumstances of the State.

In brief, the State experienced a crisis that was without parallel in its history, with low growth, doubts over fiscal sustainability and a fragile banking sector. The crisis culminated in the Irish State being granted an €85 billion bailout package by the EU/IMF to stabilise its banking sector and its economy and to fund government operations. In advance of this, the National Recovery Plan was announced by the Government, which set out its plans to make savings of €15 billion over four years.

Taking account of Ireland’s need to reduce its deficit in line with the programme agreed with the Troika, the Government introduced €6 billion of savings measures in Budget 2011.

In taking these measures, one of the critical tasks deemed necessary by the Government was to endeavour to honour the commitment made in the Croke Park Agreement to make no further reductions in the pay rates for serving public servants, while at the same time seeking to reduce the deficit in line with the bailout programme.

As part of the measures introduced in Budget 2011, all new entrants to the public service (including teachers) with effect from 1 January 2011 were placed on new reduced salary scales. In addition, all new entrants from that date were appointed to the first point of the applicable pay scale (primary teachers were traditionally appointed on the second or third point of the common basic scale as they were given incremental credit for the period spent achieving their teaching qualifications). Circular 40/2011, which implemented these changes for teachers, issued in June 2011.

The second change was introduced as part of Budget 2012 and was applicable only to teachers. With effect from 5 December 2011, new entrants to teaching were eligible for qualification allowances up to a maximum of the honours degree allowance level only. Payment of allowances in excess of that level would not be made, regardless of the qualifications held by the individual. In addition, no new qualification allowances would be paid to existing teachers for any qualification achieved after that date. Circular 70/2011, which implemented these changes, issued on 16 December 2011. Department Submission to the WRC

 In a post hearing submission on McDermott v HSE , the respondent made the following submissions:

The Department acknowledges that Ms. Henehan no longer wishes to pursue claim ref no. CA-00042595-001 in respect of payment of the Special Education Allowance in recognition of her specialist SEN Qualifications up to Level 9 – Masters which was withdrawn during the hearing on the 7th February.

At the hearing, the Department was requested to provide a further submission in relation to the ‘out of time’ point, having regard to the High Court decision of Mr Justice Hogan in the case of The HSE v. John McDermott [2014] IEHC 331, in this context the Department makes the following points.

It is useful to set out again S. 41(6) which deals with the timeframe within which a complaint under the Payment of Wages Act 1991 (‘the 1991 Act’) must be made:

“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”.

Mr. Justice Hogan, in his above referenced decision, on interpreting this provision (identical provision as was then contained in S. 6(4) of the 1991 Act itself) found that every distinct and separate breach of the 1991 Act amounts to an individual contravention, so that it was not necessary for a complaint to be made within six months of the first contravention in cases where there may be multiple contraventions over a period of time. Judge Hogan found that:

“the key question is ‘the date of the contravention to which the complaint relates’. In other words, time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention ‘to which the complaint relates’ ”. ….. 2

He went on to point out that:

“For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee”.

In the McDermott case, the complainant was a medical consultant whose contract provided for certain additional payments due on particular dates from 2007 onwards. Those payments were not made from June 2009 onwards on account of the economic crises at the time and the need for a reduction in the public service pay bill. Mr. McDermott made his complaint under the 1991 Act on 16 June 2011. Crucially, in the complaint he maintained that his pay had been unlawfully deducted between 1 January 2011 and 30 June 2011. In other words, he was not making a complaint in relation to any contravention for the period from when the additional payments ceased up to 31 December 2010.

Hogan J found therefore that the complaint was not time-barred because “[critically, the complaint in the present case related to a period of time (January 2011 to June 2011) which was presented to the Rights Commissioner on 16 June 2011, within the six month time limit in respect of this particular complaint”. Had the complaint been “framed” in a different manner i.e. if it had incorporated a complaint of a contravention having taken place earlier than January 2011, then the complaint in its entirety would have been time-barred.

In his judgment Mr Justice Hogan also referenced the decision of Keane J. (as he then was) in the case of Moran v. Employment Appeals Tribunal [2014] IEHC 154. It also involved a complaint under the 1991 Act, and similar time related arguments. It is useful to consider because Mr Justice Hogan points out how the Moran and McDermott cases are distinguishable, on account of the fact that the manner in which the complaint was framed in the Moran case meant that it was time-barred. In Moran the complainant had made his complaint in May 2010, and it had been expressed as in effect as a request for an equivalent wage increase as had been granted to another class of HSE worker ‘with effect from 14 September 2007’. The High Court found in Moran that as the impermissible deduction included a period beyond the 6 months immediately preceding the date of the complaint, it was time-barred. As Mr. Justice Keane found:

“[the uncontroverted evidence presented to the rights commissioner, the Tribunal and the Court establishes that the appellant did not, as a matter of fact, present a complaint to the rights commissioner relating to a contravention of the 1991 Act alleged to have occurred on any specific date or dates within 6 months of the 17 May 2010 (date complaint was made).”

In light of all of the above, it is the Department’s view that the present case is time-barred. Ms. Henehan’s complaint form, in respect of CA-00042595-002, states clearly that her complaint is that she has not been paid, or been paid less, than the amount due to her. In answer to the question as to what date she should have received the payment, she states 01/09/2018. Her complaint was submitted to the WRC on 19/02/2021. It is therefore quite clear that the manner in which the complaint has been framed is such that the date of the contravention stated in the complaint form

and to which the complaint relates, is long in excess of the six months immediately preceding the date of the complaint to the WRC. Accordingly it is time-barred, and this is entirely in line with the reasoning of the High Court in both the McDermott and Moran decisions.

Furthermore, to the extent that Ms. Henehan endeavours to ‘fix’ the time point, once the time issue has been brought to her attention by the WRC in its letter of 3 March 2021, it is the Department’s contention that a complainant cannot amend a complaint in such a manner. There is no provision that the Department is aware of, in either the relevant legislation or the WRC procedures, for such a fundamental amendment by email, which would put at nought the time limit provision, and allow a complainant to present in effect a fundamentally different case.

Even if the Department is incorrect in this contention, the email received from the complainant on 18 March 2021 and which purports to change the entire basis of the complaint and the date to which it relates, is insufficiently clear, and is not framed in such a manner as clearly identifies a contravention which is alleged to have occurred on a specific date or dates, which took place in the 6 months immediately before the date of the complaint to the WRC.

Further to the remaining claim ref no. CA-00042595-002 submitted by Ms. Henehan, in which she seeks to be paid her salary plus a Master’s Degree Allowance applicable from the date of the 2020 Circular. The Department wishes to make the following clarifications in respect of the amended submission by Ms. Henehan which was received on Friday 4th February to which there was no opportunity for the Department to respond to.

 The Financial Emergency Measures in the Public Interest (FEMPI) legislation provided the basis for Public Service Pay and Pension reductions (including reductions to the allowances in 2010).

 The abolition of certain allowances occurred under a Public Service-wide review of allowances carried out by the Department of Public Expenditure and Reform in 2012. Circular 0008/2013 gave effect to the decision to withdraw those allowances.

 Circular 0060/2020 did not provide for the restoration of curtailed allowances by adjusting basic pay to incorporate the value of an Honours Degree allowance as stated in Ms. Henehan’s submission. Circular 0083/2017: Revision of Teacher Salaries effective from 1 January 2018 provided for assimilated pay scales for new entrant teachers from 1st January 2011 and included a measure to compensate new entrants on lower pay to include the value of the Honours Primary Degree allowance in their basic salary. This circular also confirmed that qualification allowances remained withdrawn for teachers who entered teaching on or after 1st February 2012 as set out in Circular 0008/2013.

 Circular 0060/2020 provided for a 2% increase in basic pay to all teachers and also provided the final unwinding of the FEMPI reductions related to allowances to restore them to their pre 2010 values effective from 1st October 2020. Paragraph 10 of Circular 0060/2020 again noted that certain allowances for new beneficiaries were abolished with effect from 1 February 2012 and their appearance in the circular did not confer an entitlement to the allowance where the staff member was not already entitled to the allowance.

Ms. Henehan is seeking a personal claim to bring her salary on a par with that of new entrants by being paid her current salary plus a Master’s Degree Allowance. The Department contends that Ms. Henehan has at all times received the salary which was properly payable to her under the current rules and conditions of employment and in accordance with agreed terms and conditions which have been communicated in the relevant circular letters.

As set out in the Department’s original submission, amendments to teachers’ terms and conditions, including pay and allowances, is achieved through engagement and collective bargaining agreements between Government and Public Service Unions or through the Teachers Conciliation Council (TCC) forum. National pay agreements negotiated between the Government and the Public Services Committee of the Irish Congress of Trade Unions contain a specific paragraph advising that

“the parties agree that there will be no cost-increasing claims for improvements in pay or conditions of employment by trade unions, Garda and Defence Force associations or employees during the period of the Agreement”1.

1 Paragraph 4.2.1 Public Service Pay Agreement 2013-2018 (Lansdowne Road Agreement), Paragraph 8.3.1 Public

Service Pay Agreement 2018-2020 and Paragraph 5.6.1 Building Momentum Pay Agreement 2020-2022 refers

It is not tenable for the Department to negotiate with individual employees to apply separate arrangements and therefore the Department is not in a position to consent to the claim as submitted by Ms. Henehan. The Department respectfully submits that the claim should be dismissed.

The claimant presented her complaints under Section 6 of the Payment of Wages Act 1991 to the Director General of the WRC on the 19.02.2021 – claiming that the respondent was in breach of Section 5 of the Act. Section 6 of the Act provides that an Adjudication Officer “ shall not entertain a complaint under this Section unless it is presented to him within the period of 6 months beginning on the date of contravention to which the complaint relates (or in  a case where the AO is satisfied  that exceptional circumstances prevented the presentation of the complaint within the period aforesaid ) such further period not exceeding 6 months as the AO considers reasonable”.The claimant is seeking compensation for the non payment of an allowance from the 1st.Sept. 2018 .The respondent has argued that no continuous breach  could have occurred as for that to happen the act must keep recurring repeatedly , which is not the position in this case as the decision regarding eligibility for qualification allowances was a single act.

The question of what constitutes a continuous breach was considered by Justice Hogan in an appeal of Section 7 of the Act between the HSE and John McDermott , a consultant working pursuant to a 2008 Consultant Contract .The case originated when Mr.McDermott submitted his complaint to a Rights Commissioner on the 16th.June 2011 claiming  the unlawful non payment of wages between 1Jan.2011 – 30June 2011.As  in the instant case , the HSE argued that the complaint was out of time because it resulted from a single act – a Ministerial decision made in 2009 to not pay an increase due under contract to consultants  - this was one of the measures introduced to reduce the public sector wage bill and   was triggered by  the financial crisis at the time. The Rights Commissioner disagreed with the HSE and found that a continuous breach had occurred. The Rights Commissioner found against Mr.McDermott on the substantive issue who appealed the finding to the Employment Appeals Tribunal. The EAT found in line with the Rights Commissioner decision that there were ongoing breaches and held that each contravention resulted in a cause  of action  and that the employee has 6 months in which to make a claim against the employer. The HSE appealed to the High Court n a point of law .Justice Hogan concluded that the EAT was correct in its decision , that Mr.McDermotts claim was not time barred due to how it was presented as it sought relief relating to contraventions falling in the 6 months time limit in respect of the complaint being presented to the Rights Commissioner on the 16June 2011.

While I agree with the respondent’s definition of what constitutes a continuous breach and agree that the decision regarding the eligibility for qualification allowances was a single act , I do not accept for the same reasons as found by the EAT in the HSE v McDermott , that this resulted in her complaint being time barred. Consistent with the provisions of Section 6 of the Act the claimant’s complaint was presented to the WRC on the 19th.Feb. 2021 – as clarified in her submissions she sought relief for contraventions that occurred from 1st. Oct. 2020 - arising from the October0060/2020    Circular  to the date of receipt of her complaint. As this time period falls within the 6 month limit allowed under Section 6(4) of the 1991 Act , I find her complaint is not time barred.

The claimant is seeking compensation for the non payment of a qualification allowance she maintains she had a legitimate expectation of being paid  and that the non payment of same constituted an unlawful deduction from her wages. While I fully appreciate why the claimant expected that the allowances removed under Fempi would be restored , I do not accept that this expectation gave the claimant a contractual right to the payment of the allowance. The respondent and the teacher unions entered into discussions on the restoration of payments withdrawn  under the Fempi legislation – these discussions resulted in a decision not to reinstate the allowance sought by the claimant  While I fully accept that by not reinstating the allowance the claimant has been left in a disadvantageous position relative to some of her colleagues and has reason to be aggrieved that her action in improving her skills , to the benefit of the respondent has gone unrecognised financially, I find her complaint that the respondent was in breach of Section 5  of the Act not to be well founded. Unlike Mr.McDermott who had a contract with his employer that specified that he would receive a salary increase from a particular date , the claimant had no such contractual right .

I find against the complainant and declare the complaint is not well founded.

Restoration of allowances removed under FEMPI