PWD231

1.Appeal Of Adjudication Officer Decision No ADJ-00035364, CA-00046570-001.

BACKGROUND:

2.This is an appeal by Ms Michele Hanley (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00035364, dated 16 September 2022) under the Payment of Wages Act 1991 (‘the Act’). The Complainant’s Notice of Appeal was received in the Court on 26 October 2022. The Court heard the appeal on 6 January 2023. The Complainant gave sworn evidence as did Mr Walter Lacey and Mr Tony Harney on behalf of the Board of Management of Scoil Mhuire gan Smál (‘the Respondent’).

DETERMINATION:

The Factual Matrix

The Complainant has been employed by the Respondent as a part-time school secretary since 2004. She works twenty-eight hours per week over four days. She is remunerated at a rate of €19.71 per hour and receives a total of forty days paid annual leave per annum.

In November 2017, the Complainant requested and was granted a pay increase of 2.5%. There is a dispute between the Parties as to whether or not this pay increase was granted to compensate the Complainant for taking on additional duties. She submits that it was. However, the Respondent denies this and submits that the duties the Complaint asserts were additional duties consist only of tasks that form part of the normal duties performed by a school secretary.

In October 2018, the Complainant requested a second pay review following which the Respondent agreed to increase her pay by a further 7.5%, backdated to 1 September 2018. This brought her annual salary to €28,620.80 for a four-day week.

In September 2020, the Complainant became aware of the existence of four Department of Education and Skills Circulars (0076/2015; 0080/2016; 0078/2017 and 0076/2018) each of which provided,inter alia, for an annual pay increase of 2.5% for school secretaries employed by Boards of Management of Recognised Primary Schools. The Complainant brought the Circulars to the attention of the Respondent and requested that the pay increases therein be applied to her in addition to the pay increases she had negotiated locally in 2017 and 2018. Again, there is a dispute between the Parties as to what happened at this point. The Respondent submits that it recognised that the pay increases provided for in the aforementioned Circulars had not been applied to the Complainant on the dates they had fallen due (1 January 2015, 2016, 2017 and 2018 respectively). It, therefore, undertook a review of her pay from 1 January 2015 and determined that her pay as of December 2020 should be €551.91 per week as opposed to €550.00 per week which she was then in receipt of. The Respondent also made a payment of €3,015.00 to compensate the Complainant for any shortfall in payment that had occurred arising from the non-application of the Circulars to the Complainant on the applicable dates. The Respondent’s position is that the Complainant was not entitled to benefit from both the pay increases granted to her by the Board of Management and the pay increases provided by the Circulars. The Complainant submits that in adopting this approach, the Respondent has effectively deprived her of the two pay increases she had negotiated locally and had been in receipt of since 2018.

The Claim

The Complainant referred her complaint under the Act to the Workplace Relations Commission on 6 October 2021. She outlined the background to her dispute with the Respondent in considerable detail on her complaint form. She particularised her complaint under the Act as follows:

• “The outcome I want is for the two pay increases negotiated and agreed between the BOM and I in 2016 (sic) and 2019 (sic) to be reinstated. I also want the 4 x 2.5% increases to be based on my salary at the time they came into effect (i.e. applied to my salary which included the salary increases of 2016 and 2019 (sic)). I also want these increases applied from the date that they should have come into effect, and any backdated salary paid to me. This is right and proper, and it is what I am entitled to.”
  
  
  

Application for Extension of Time

At the commencement of the hearing of the within appeal, Counsel for the Complainant applied to extend time for bringing the complaint by a further six months. In other words, he applied to have the period to which the complaint relates enlarged to include the six-month period ending on the date that the complaint was actually referred to the Workplace Relations Commission. Counsel submitted that there were grounds that constituted reasonable cause for such an extension: firstly, the fact that the Complainant was at all material times engaging with the Respondent in an effort to resolve the dispute between them and secondly because of the prevalence of Covid-19. The Court considered Counsel’s application and declined it. It is the well-established view of the Court that a would-be complainant is not in any way inhibited - by virtue of ongoing discussions with their employer – from referring a statutory complaint to the Workplace Relations Commission within the statutory timeframe for so doing, for the purposes of ‘stopping the clock’. The complaint can be withdrawn if the parties to the dispute succeed in resolving the dispute, the subject of the complaint, between themselves. Secondly, the Court cannot accept that Covid-19, in some general and unspecified way, constitutes reasonable cause for delay in referring a statutory complaint in circumstances where the Workplace Relations Commission has a mechanism in place to facilitate the referral of statutory complaints to it via an online portal. Indeed, the vast majority of complaints are received by the Commission in this manner.

The Respondent’s Application regarding the format of the Complaint

Counsel for the Respondent submitted that the Complainant’s claim under the Act, as articulated in her complaint form (and also in identical terms in a letter she wrote to the Respondent dated 5 October 2021) was not framed in a manner that brought it within the scope of the Act at all. In making her application to have the matter dismissed on this basis, Counsel opened to the Court the judgment of Mr Justice Hogan inHealth Service v McDermott[2014] IEHC 331. In particular Counsel directed the Court to the following paragraphs from that judgment:

• “The construction of s. 6(4) of the 1991 Act.

  12. It is at this point that we can return to the construction of the relevant language of s. 6(4), namely, “within the period of 6 months beginning on the date of the contravention to which the complaint relates”. The first thing to note is that no special meaning has been ascribed to the word “contravention” by the 1991 Act, so that it must be given its ordinary, natural meaning.

  13. We may next observe that the actual language of the sub-section is clear, because it is the words “contravention to which the complaint relates” which are critical. It may be accepted that every distinct and separate breach of the 1991 Act amounts to a “contravention” of that Act. If, for example, an employee is paid monthly and the employer makes unlawful deduction X in respect of salary for every month in a two year period it might be said in the abstract that there have been 24 separate “contraventions” of the 1991 Act during that period.

  14. Yet the relevant statutory language takes us somewhat further, because 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.” As the EAT pointed out in its ruling on the matter, had the Oireachtas intended that time was to run from the date of the first contravention, it could easily have so provided.

  15. For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three-year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time.

  16. It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time.

  17. It may be that when enacting s. 6(4) the Oireachtas did not fully appreciate that everything might turn for the purposes of time on the actual manner in which the particular complaint was actually framed by the employee, but the language of the sub-section really admits of no other conclusion. Nor can it be said that such a conclusion is absurd in any way.”

Discussion and Decision

The originating complaint in this matter was received by the Workplace Relations Commission on 6 October 2021. Having regard to the decision of the High Court inHealth Service v McDermott[2014] IEHC 331, a complaint under section 6 of the Act to be validly framed (in the absence of any extension of time) must relate to deductions claimed to have been made within the six-month period that ended on the date of the receipt of the complaint by the Workplace Relations Commission. Having carefully considered the Parties submissions and the actual wording used by the Complainant in her complaint form, the Court finds that the latter does not make reference to alleged deductions within the relevant period. The Court has no option, therefore, but to find that the complaint is not framed in a manner that brings it within time.

The appeal, therefore, fails and the decision of the Adjudication Officer is varied accordingly.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
IK	______________________
11 January 2023	Deputy Chairman