Complainant

Respondent

Parties

Stephanie  O'Donovan

Cork Education and Training Board

Representatives

  Self - Represented

Lisa Moloney IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00064294-002

24/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00064294-003 WITHDRAWN

24/06/2024

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

CA-00064294-001

24/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00064317-001

25/06/2024

The Complainant commenced employment with the Respondent on 22 November 2010, and currently is employed as a Teacher of Art on a contract of indefinite duration (CID) with Youthreach in Bantry. In addition to her role as a Teacher of Art, the Complainant was also employed as a Tutor on a fixed term contract of employment in Community Adult Education at St Gobans, Bantry, a position the Complainant vacated on 18 January 2024. The Respondent is a statutory Education and Training Board (ETB) governed by the Education and Training Boards Act 2013.

The Complainant submits the following, after clarification at the commencement of the hearing:

1.      That the Respondent did not notify her of a change in her working hours contrary to Section 5(3) of the 1994 Act.

2.      She was not in receipt of her full wages that were properly payable to her, in breach of section 5 of the 1991 Act

3.      She was treated less favourably than a comparable permanent employee in respect of her conditions of employment, contrary to section 6 of the 2003 Act.

The Respondent disputes the complaints in their entirety. The Respondent asserts the relevant legislative provisions were complied with in relation to the Complainant, and the Acts referenced were not contravened in the manner alleged.

Preliminary Issue – Cognisable Period of 6 Months:

The respondent argues that under Section 41(8) of the Workplace Relations Act 2015, claims must be made within six months of the alleged contravention unless "reasonable cause" for delay is established. The legislation and Labour Court precedents confirm that the time limit runs strictly from the date of the alleged breach.

The Respondent asserts that there is no discretion to extend the time limit beyond six months unless "reasonable cause" is proven. The Respondent cites a number of cases in support of its argument including the seminal case of Cementation Skanska v Carroll (DWT033), where the Labour Court stated that there is a requirement on a Complainant to provide a reasonable explanation for the delay, demonstrating a causal link between the delay and the stated reason. The length of the delay is also a factor, with longer delays requiring more compelling justification. The Court said it must also consider whether an extension would prejudice the respondent and whether the complainant has a valid claim.

The Respondent asserts that the   Complainant submitted their claim to the Workplace Relations Commission (WRC) on 24 June 2024, meaning that only claims from 24 December 2023 to 24 June 2024 fall within the allowable timeframe. Even if an extension were granted, the earliest permissible date would be 24 June 2023. However, the Respondent argues that no reasonable cause has been provided for an extension. Furthermore, the Respondent submits that the Complainant points to issues dating back to 2017 which are clearly outside the statutory timeframe.

The Complainant submits that additional time is requested on the reasonable grounds that she had repeatedly attempted to resolve the various issues complained of with her line managers up until May 2024 when she submitted the complaint to the WRC. She maintains she only found out in May 2024 that there was a comparable teacher in St Goban’s who was being paid the qualified ‘teacher’ rate while she was paid the lower unqualified ‘tutor’ rate.

CA-00064317-001 TERMS OF EMPLOYMENT:

The Complainant gave evidence that her complaint comes under Section 5(1) of the 1994 Act. She claims she was obliged to work an extra hour to work nor was this fundamental change notified to her. She sent an email to the Respondent on 7 December 2023 pointing out that her hours increased to 18 hours on the Youthreach CID at the beginning of this Academic Year 2023/24. This was acknowledged in a response, and she was paid the extra hour, but the Complainant said that she believed her position was precarious and the initial responsibility was on the Respondent to notify her of the change, as was its obligation under Section 5(1) of the 1994 Act. The Complainant, in cross-examination, accepted that she did not use the official grievance policy in relation to this issue. She instead expressed an unfamiliarity with the process.

CA-00064294-001 PAYMENT OF WAGES:

The complaint was in relation to her tutor role at St. Gobans. The Complainant asserted that she was making a complaint under section 6(1) of the 1991 Act which states that an employee may present a complaint to an adjudicator that her employer has contravened Section 5 of the Act. The Complainant contends that the Respondent made unlawful deductions to her wages without any statutory justification contrary to Section 5 of the 1991 Act as far as she was not placed on the applicable point on the teachers’ qualified incremental scale and was denied the pay and allowances properly payable to her. She further submits that it was custom and practice of the Respondent that other teachers similarly employed, with the same Teaching Council registration certifying their qualified status to teach in the Further Education sector, were paid on the incremental scale to include an additional increment for each year, or 600 hours of teaching service, with qualification allowances.

The Complainant submits that such treatment constitutes a deduction, as far as it is also incompatible with the requirements of EU law, including settled case law of the European Court of Justice in Huet v Université de Bretagne 8.3.2012, C-251/11 and under Article 45 of the Treaty on the Functioning of the EU. This sets out the obligations upon a Member State to take account of prior comparable qualified service in the public sector of the Community in determining the level of pay on the incremental scale. The Complainant argues that by virtue of her prior professional experience and status as a qualified teacher in the United Kingdom, with access to the incremental scale in an EU Member State, and by virtue of my right as an EU national having had  prior professional experience recognized, she should have been given access to the incremental scale in Ireland for her work of teaching QQI level 3 and 4 modules. The Complainant asserts that the restrictions imposed by the Respondent, which hinder her full access to and progress on the incremental pay scale, violate the EU law principle of proportionality and breach her Treaty rights. Since she was previously paid as a qualified teacher on the incremental scale in the UK (when it was part of the EU), she believes she is entitled to the same fully qualified rate for her Level 3 and 4 work with the same Respondent. The Complainant submits that any reduction in pay by applying a lower rate is unlawful under EU law and the 1991 Act.

CA-00064294-002 – LESS FAVOURABLE TREATMENT, 2003 ACT.

The applicant claims unfair treatment as a fixed-term worker, asserting that she was paid at a lower ‘tutor’ rate for teaching QQI Level 3 and 4 modules at St Goban’s, than a comparable qualified teacher, Ms A, whom while working as a tutor teaching QQI Levels 3 and 4 in work similar to the Complainant, was paid at the teacher’s rate whilst the Complainant was paid the unqualified tutor’s rate. The Complainant submits that this violates Section 6(1) of the 2003 Act, which prohibits less favourable treatment of fixed-term employees.

CA-00064317-001 TERMS OF EMPLOYMENT:

It is the Respondent’s position that the Complainant was provided with written confirmation of Terms & Conditions of employment prior to commencing and during employment with the Respondent. The Respondent submits that it has complied fully with Section 5 of the Terms of Employment (Information) Act 1994 in that the Complainant was provided with written notice of the provisions of the Contract under which she is an employee of the Respondent, and accordingly the Complainant cannot establish a breach of the Terms of Employment (Information) Act 1994. The Complainant is employed on 2 separate contracts of employment, a contract of indefinite duration as a teacher and was simultaneously as a tutor on a fixed term contract. The Complainant received her updated CID in November 2023 and had a further contract for 1 additional hour’s work.

CA-00064294-001 PAYMENT OF WAGES:

The Complainant is arguing that there was a deficiency in payment to her. The 1991 Act, under section 5(6) states:

  “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, […] then […] the amount of the deficiency […] shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

The Complainant submits that the essential element to establish is what were the wages “properly payable” to the employee on “that occasion.” The Respondent contends that the wages “properly payable” to the employee were the wages as advised to the employee in the contract of employment. No deduction, as defined in Section 5 of the 1991 Act, has been made. Accordingly, no authority exists under the 1991 Act for this claim to be heard. The Respondent exhibited the relevant payslips. Any deduction made to the Complainant’s salary were made in accordance with Section 5 of the Act, namely deductions required by virtue of statute, and are thus lawful deductions. The Respondent argues the rates that the Complainant was on for the Tutor and Teacher roles, are the correct rates as per her contracts of employment and the relevant exhibited circulars.

CA-00064294-002 – LESS FAVOURABLE TREATMENT, 2003 ACT.

Ms Carolyn Casey of the Respondent’s HR Department gave evidence on this issue. She accepted that Ms A was paid the qualified teacher rate at St Goban’s, but she was conducting tutor’s work, in a similar manner to the Complainant. This resulted in a higher rate of pay for Ms A, who was a permanent worker with the Respondent. By way of objective justification for this anomaly, the witness said that Ms A’s position as teacher, as well as a number of other teacher positions were terminated at a location operated by the Respondent in County Cork. There was a strict directive from the Department of Education that no teacher should be made redundant. In the Haddington Road Public Service Agreement there is distance requirement that any redeployed person must be put in a location within 45 kms of the home address and retained on the same rate of pay. The witness stated that St Goban’s Bantry was the only location suitable for redeployment for Ms A in this instance.

Preliminary Issue – Cognisable Period of 6 Months:

The Workplace Relations Act, 2015, Section 41 provides:

 (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.

It has been well established that the interpretation of “beginning on the date of the contravention to which the complaint relates” is to be interpreted literally in that the cognisable period for the scope of the legislation is to deal with the alleged specific contravention within the 6 month period immediately before the submission of the complaints, which in this instance, began on 24 December 2023 and ended on 24 June 2024. The Complainant had argued for reasonable cause for an extension of the time period. She convincingly argued that information in relation to the 2003 Act complaint was not forthcoming from the Respondent until late May of 2024. The three complaints were organically linked and were a measure of the disaffection felt by the Complainant. I therefore find that the Complainant has proven reasonable cause for a further 6 months under the under the three Acts therefore I deem the cognisable period for the scope of the examination to commence on 25 June 2023.

CA-00064317-001 TERMS OF EMPLOYMENT:

The Complainant had originally submitted that she had not received a copy of her terms of employment contrary to section 3(1) of the 1994 Act as well as not having been notified of a change in those terms contrary to section 5 of the 1994 Act. However, at the commencement of the hearing, she advised she was seeking adjudication only under section 5 of the 1994 Act.

Section 5 provides:

(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) the day on which the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute other than a registered employment agreement or employment regulation order or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.

The Complainant gave convincing and uncontested evidence that her work hours increased to 18 hours in her Youthreach CID but that this was recognised officially by the Respondent, and though she was paid for the extra hour, she had to write to the Respondent to have this recognised officially. I am satisfied therefore that the complaint was well founded.

Redress under the 1994 Act is dealt with at section 7(2) which provides:

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G shall do one or more of the following namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under [section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G], or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) in relation to a complaint of a contravention under [section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G] and without prejudice to any order made under paragraph (e)] order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks' remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

It should be emphasised that compensation, if any, must be within the bounds of what is fair and equitable having regard to all the circumstances. The Complainant gave plausible evidence that the uncertainty of the number of her hours in the CID was of practical significance to her and gave her a sense of insecurity. Taking this into account I award the Complainant the compensatory sum of €2,000 which approximates closely to two weeks’ pay.

CA-00064294-001 PAYMENT OF WAGES:

The Complainant alleges that unlawful deductions were made from her wages due to incorrect pay categorisation as an unqualified tutor, instead of being paid the qualified teacher rate. The Respondent argues no unlawful wage deductions occurred.  The Respondent contends the Complainant was paid according to her contract terms, with different pay rates for her roles as a Teacher (CID) and Tutor.

Section 5 of the 1991 Act in its applicable parts provides:

(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.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term, and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

(6) 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 (my emphasis) 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 previously mentioned) are paid to the employee,

then, except as 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.

Determining what is “properly payable” under section 5(6) is central to adjudication of this complaint. The Complainant maintains that she was a qualified teacher, but she was paid the tutor rate at St Gobans, which is substantially less than the wages properly payable to her as a qualified teacher. She was paid the teacher rate in her CID at Youthreach with the Respondent but the matter before me in the cognisable period is the rate for the tutor hours. Mc Grath J in Marek Balans (Appellant) v Tesco Ireland Limited [2020] 31 E.L.R. 125 found that when considering whether a deduction from wages has been lawfully made, the concept of wages “properly payable” is central to the court's analysis and should be addressed before considering the question of a deduction or whether a deduction is unlawful. Therefore, the key issue to determine is the wages that were "properly payable" to the employee in the cognisable period. In Coindealbhain (Inspector of Taxes) v- Mooney, 1990 1 IR 42, Justice Blaney stated that “Where there is an agreement creating the relationship between the parties is expressed in writing, the entire agreement between the parties is to be found in the writing so it is the unique source of their relationship; it follows that it is from its terms alone that the nature of the relationship can be determined.” The terms governing the consideration of the Complainant’s position as tutor and pay are expressly laid out in written agreed contract commencing 7 September 2023, with amongst other terms, the following term regarding remuneration: “The rate of pay attaching to this position is the rate of pay for timetabled tuition hours only as instructed by the Minister/Department of Education and Skills.”  These provisions are clear and unambiguous as to their meaning and effect. The Complainant referred to European Law and the obligation on employers to recognise professional qualifications across borders. This principle is not at issue here in the cognisable period dealing with the tutor contract under the 1991 Act.  The Complainant was paid as a teacher in Youthreach, receiving the recognised teacher rate,  but the employment at issue here was at St Gobans, where she accepted a tutor contract on tutor rates.  I am satisfied that the wages “properly payable" were those specified in the Complainant's contract of employment. I am satisfied that no deduction, as defined under Section 5 of the Act, has been made. Consequently, the complaint was not well founded.

CA-00064294-002 – LESS FAVOURABLE TREATMENT, 2003 ACT.

The Complainant claims she was treated less favourably than a comparable permanent employee, Ms A, in respect of her conditions of employment, contrary to section 6 of the 2003 Act. It was uncontested that Ms A was employed as a permanent tutor who conducted like work to the Complainant, but at a higher rate of pay than the Complainant who was on a fixed-term contract as a tutor at St Gobans.

Section 6 of the 2003 Act provides:

(1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.

(2) If treating a fixed-term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

(3) A period of service qualification relating to a particular condition of employment shall be the same for a fixed-term employee as for a comparable permanent employee except where a different length of service qualification is justified on objective grounds.

(4) For the avoidance of doubt, the reference in this section to a comparable permanent employee is a reference to such an employee either of the opposite sex to the fixed-term employee concerned or of the same sex as him or her. (5) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a fixed-term employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable permanent employee

(6) The extent to which any condition of employment referred to in subsection (7) is provided to a fixed-term employee for the purpose of complying with subsection (1) shall be related to the proportion which the normal hours of work of that employee bears to the normal hours of work of the comparable permanent employee concerned.

(7) The condition of employment mentioned in subsection (6) is a condition of employment the amount of benefit of which (in case the condition is of a monetary nature) or the scope of the benefit of which (in any other case) is dependent on the number of hours worked by an employee.

(8) For the avoidance of doubt, neither this section nor any other provision of this Act affects the operation of Part III of the Organisation of Working Time Act 1997.

Section 7 deals with objective justification for less favourable treatment:

Objective grounds for less favourable treatment

(1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a fixed-term employee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of a fixed-term employee's contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.

(2) Where, as regards any term of his or her contract, a fixed-term employee is treated by his or her employer in a less favourable manner than a comparable permanent employee, the treatment in question shall (for the purposes of section 6(2)) be regarded as justified on objective grounds, if the terms of the fixed-term employee's contract of employment, taken as a whole, are at least as favourable as the terms of the comparable permanent employee's contract of employment.

The purpose of the Protection of Employees (Fixed-Term Work) Act 2003 is to provide for the implementation of Directive 1999/70 concerning the framework agreement on fixed-term work. The Labour Court emphasised the importance of relying on the decisions of the ECJ when evaluating objective justification under section 7 of the 2003 Act in St Catherine's College for Home Economics and the Minister for Education and Science (respondents/appellants) v Helen Maloney and Margaret Moran (complainants) 2009 20 E.L.R. 143 where it stated:

“The test for deciding if a ground can be regarded as an objective ground is the same as that first formulated by the ECJ in Bilka-Kaufhaus GmbH v Karin Weber von Hartz Case 170/84 [1986] E.C.R. 1607. In that case the court set out a three-tiered test by which an indirectly discriminatory measure may be justified. It said that the measure must firstly meet a “real need” of the employer; secondly the measure must be “appropriate” to meet the objective which it pursues and finally the measure must be “necessary” to achieve that objective. The various elements of the test were analysed in detail by this court in Inoue v NBK Designs Ltd [2003] E.L.R. 98. While there are textual differences in the formulation of the test in s.7 of the Act and that in Bilka-Kaufhaus, the differences are not material. Consequently, the jurisprudence of the ECJ in the application of the test is relevant in cases under the Act of 2003.”

Ms Carolyn Casey of the Respondent’s HR Department provided convincing evidence of what the Respondent considered to be objective justification for the less favourable treatment of the Complainant. I am satisfied that there was a genuine necessity for the Respondent to redeploy Ms A, particularly in light of the directive from the Department of Education, which stipulated that no teacher should be made redundant or experience a reduction in pay.

Ms A had to be redeployed within a 45-kilometre radius of her home in accordance with the Public Service Agreement. Given these constraints, the evidence demonstrated that St Goban’s Bantry was the only viable option for the required redeployment of Ms A . I am therefore satisfied that, in the overall context, the relocation of Ms A as a tutor on teacher salary, was both appropriate and necessary, thereby meeting the St Catherine’s College/Balhaus test.

Accordingly, I conclude that the Complainant’s status as a fixed-term employee was not the determining factor in the lower rate of pay she received when compared with her comparator, Ms A. Rather, it was the exceptional circumstances faced by the Respondent, which necessitated a response that was both appropriate and necessary and therefore objectively justified in line with section 7 of the 2003 Act.  Consequently, I decide that the complaint was not well founded.

CA-00064317-001 TERMS OF EMPLOYMENT:

For the reasons outlined above, I decide the complaint was well founded, and I direct the Respondent to pay the Complainant the compensatory sum of €2000.

CA-00064294-001 PAYMENT OF WAGES:

For the reasons outlined above, I decide the complaint was not well founded.

CA-00064294-002 – LESS FAVOURABLE TREATMENT, 2003 ACT.

For the reasons outlined above, I decide the complaint was not well founded.

Payment of Wages Act 1991, Terms of Employment (information) Act 1994, Protection of Employees (Fixed-Term Work) Act 2003, objective justification, out-of-time.