ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00052315
Parties:
| Complainant | Respondent |
Parties | Rachel Burke | Department Of Education |
Representatives | Self | Stephen O’ Sullivan BL instructed by the Chief State Solicitors office |
Complaint(s):
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-00064001-001 | 09/06/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00064002-001 | 10/06/2024 |
Date of Adjudication Hearing: 24/09/2024
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
I heard a considerable amount of evidence during the hearing and was provided with well-presented submissions. The parties capably represented themselves on both sides and the witnesses were all courteous to me and the process. I acknowledge the substantial effort on the part of the Complainant in preparing her submissions which were of a very high standard.
I allowed the right to test the oral evidence presented by cross examination.
Evidence was given on oath/ affirmation.
I have taken time to review all the evidence both written and oral. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or found superfluous to the main findings. I am required to set out ``such evidential material which is fundamentally relevant to the decision´´ per MacMenamin J. in Nano Nagle School v Daly [2019] 3 I.R. 369.
The parties´ respective positions are summarised hereunder followed by my findings and decision. I received and reviewed documentation prior to the hearing and a copy of the Complainants oral submission in writing post hearing. All evidence and supporting documentation presented has been taken into consideration.
Background:
This complaint is brought under the Payment of Wages Act 1991. (PWA) The Complainant is a Primary School teacher currently employed in Co. Kildare. Her employment commenced in August 2022. She previously worked as a Senior Physiotherapist in Naas General Hospital. Her complaint is that she was refused an incremental credit relating to her prior relevant Non-Teaching (RNT) service for the HSE as a Practice Tutor/Senior Physiotherapist. |
Summary of Complainant’s Case:
The Complainant submitted detailed submissions in advance of the hearing and presented a well-argued submission at the hearing. The following is a summary of her submission. On the 20 November 2022 she submitted an application for Incremental Credit in respect of Relevant Non-Teaching Experience in line with Department of Education Circular 10/01. This was refused on the 1 April 2023 as it ‘not considered relevant to primary school teaching’. In August 2023 she exercised her right to appeal and she received notice that her appeal was rejected on 11 December 2023. Her complaint to the WRC set out - the merits of her application were not correctly considered and her considerable experience in her work outside primary school teaching was not taken into account - decision maker failed to provide her with the grounds it made its decision for her to identify where she failed to meet the criteria required to be successful as required by administrative law. - There was unacceptable delay in processing her application effectively - Fair procedures were not followed in the decision making process She submitted that teaching third level students was clearly analogous to teaching primary school students, albeit with a different curriculum In an effort to understand the assessment criteria the Complainant sought details of same through a Freedom of Information request. However, she received no evidence of assessment criteria in the decision-making process and submitted that the process was arbitrary. She relied on the decision of Connelly -v- An Bord Pleanála 2018 IESC 1 as requiring a decision maker to address why the necessary criteria was deemed to be met or not met. She submitted that the amount properly payable to her was her was her current salary plus incremental credits in respect of relevant non-teaching experience. |
Summary of Respondent’s Case:
The Respondent raised a preliminary object on time limits for the Complainant to bring her complaint. The Respondent submitted that the Complainant did not make an unlawful deduction as defined by s. 5 of the PWA. It submitted that the Complainant was paid the rate the Department of Education (DOE) contracted to pay her at material times and therefore the wages that were properly payable pursuant to s.5.6 PWA. It claimed that the Complainant was in effect seeking to appeal the PICAC decision by way of a PWA claim and that Circular 10/2001 does not allow an appeal from the PICAC decision. It submitted that the DOE and PICAC followed fair procedures in arriving at their decision and applied the criteria prescribed in Circular 10/2001. It relied on the case of Clinton v St Anne’s National School PW 70/2007. The Complainant therein claimed that the rate of pay was less than the national per diem rate but had accepted the rate on appointment. It was held that the employer had not breached its obligations in the PWA and it had paid what it contracted to pay. The Respondent also relied on the Complainant’s WRC claim form, wherein she stated “ During my seven years working in Naas Hospital, my role was split 50-50 between working as a senior. rheumatology physiotherapist and a practise tutor teaching UCD undergraduate students.” The Respondent pointed out that although this was not a factor relied on by the DOE in its first decision or PICAC in its appeal decision, it is clear that the Complainant was not a full-time tutor for the period claimed 20/4/15 - 4/7/22. |
Findings and Conclusions:
CA-00064002-001 is a duplication of CA-00064001-001 and I make no decision in respect of same. CA-00064001-001 Section 5 of the Payment of Wages Act 1991 sets out 5. Regulation of certain deductions made and payments received by employers (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it. My role is to decide based on the evidence presented to me what wages were properly payable to the Complainant firstly and based on that finding if there was a deduction from same. I have considered the evidence presented to me by both sides. The legal maxim of “it is for the parties to strike a bargain; the judiciary serve merely to enforce it” applies in this case. I have no role in relation to determining whether the Complainant qualified for an incremental credit award or not. This is for determination under the internally agreed and applied procedures of the Respondent. There is no provision for an appeal of any internal determination to the WRC. It may be open to the Complainant to bring a new claim under the internal procedures but this is a matter for the Complainant to pursue. No evidence was presented that the Respondent has unlawfully made a deduction to the Complainant’s agreed wages. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
This complaint is not well founded. |
Dated: 10th of February 2025
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Key Words:
Incremental credit. Wages not properly payable. Unlawful deduction |