Case Number: ADJ-00014665. Workplace Relations Commission

• Docket Number: ADJ-00014665
• Hearing Date: 04 September 2018
• Date: 08 November 2018
• Court: Workplace Relations Commission
• Parties: A Teacher & Assistant Principal V A Government Minister

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00014665

	Complainant	Respondent
Anonymised Parties	A Teacher & Assistant Principal	A Government Minister

Representatives Irish National Teachers Organisation Chief State Solicitor's Office

Complaint:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00018968-001	04/05/2018

Date of Adjudication Hearing: 04/09/2018

Workplace Relations Commission Adjudication Officer: Ewa Sobanska

Procedure:

In accordance with Section 41 of the Workplace Relations Act, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant commenced his employment with a named primary school on 1st September 2000. The Complainant was placed on sick leave on full pay from 7th November 2016 to 1st February 2017; half pay from 2nd February 2017 to 3rd April 2017 and the Temporary Rehabilitation Remuneration rate of pay from 4th April to 7th November 2017. The Complainant claims that the Respondent unlawfully deducted his salary by the application of sick leave entitlements during the period from 2nd February to 3rd April 2017 (half pay) and the Temporary Rehabilitation Remuneration (TRR) rate of pay from 4th April to 7th November 2017. The Respondent rejects the claim. This complaint was heard in conjunction with ADJ- 00014666 and ADJ- 00014668. Substantially, the same matters are complained of in all sets of proceedings. However, the Respondent in ADJ-00014666 is named as a Government Department and in ADJ-00014668 as a named primary school.

Preliminary issue: Correct Respondent Summary of Complainant’s Case:

The Complainant submits that all three respondents are correct. He claims that the Government Department is the paymaster, the Board of Management of the named school processes the sick leave and the Minister is the patron of the school who nominates the Board of Management. The Complainant submits that the payment is made by the Department on instructions from the Board of Management.

Summary of Respondent’s Case:

The Respondent submits that for the purposes of the Payment of Wages Act claim the Department is the correct Respondent.

Findings and Conclusions:

The Labour Court in the determination DWT1716 Minister for Education & Skills v Jacqueline Walsh refers to the Court of Appeal decision in The Minister for Education and Skills v Anne Boyle [2017] IECA 39. The Court notes: “Hogan J in Boyle, traces in great detail the case law in relation to what he refers to as “the nature of the triangular pact identified by Gibson J in [Fox v Higgins (1912) 46 ILTR 222] over 100 years ago [that] still defies any standard conceptual analysis, at least for the purposes of the general law of contract.” (Par 78). Nevertheless, the learned Judge concludes his analysis with the observation that “the legal realities” of the relationship between a teacher/SNA, the Board of the school in which that person is employed and the Minister has two employers: the Board is the employer for certain mattes arising from an express contract with the school; the Minister is the employer for other purposes (such as for example, availing of employment protections in matters relating to pay and remuneration) based on an implied contract between the teacher and the Minister. The Boyle case specifically related to a claim under the Protection of Employees (Part-time Work) Act 2001, however, the judgment would appear, at least by analogy, to apply to all employment-related protective legislation that impacts on employees’ remuneration entitlements. This Court is clearly bound by the judgment of the Court of Appeal. Applying the reasoning of that judgment, It appears to this Court that the correct respondent for the purposes of the claims under the 1997 Act (only) is the Minister.” Accordingly, I find that the Respondent in this case is the correct respondent.

Decision on preliminary matter:

For the reasons outlined above I find that the Minister is the correct respondent for the purposes of the claim under the Payment of Wages Act, 1991.

Preliminary matter: time limits

Summary of Respondent’s Case:

The Respondent submits that a substantial portion of the complaints are out of time. The Respondent submits that the statutory limits for the making of a complaint under Section 6 of the Payment of Wages Act, 1991 are set out in section 41(6) of the Workplace Relations Act 2015 which provides as follows: “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 6 months beginning...