EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
PW193/2015
APPEAL(S) OF:
Monica Campion
against the recommendation of the Rights Commissioner in the case of:
Department of Education & Skills
under
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. S. McNally
Members: Mr. D. Hegarty
Mr. J. Flavin
heard this appeal in Cork on 19 April 2016
Representation:
_______________
Appellant(s) :
Mr, Bernard Moynihan, A.S.T. I., Thomas MacDonagh House, Winetavern Street, Dublin 8
Respondent(s) :
Mr. Glen Gibbons BL instructed by Ms. Grainne O'Mahony for Ms. Eileen Creedon, Chief State Solicitor, Osmond House, Ship Street Little, Dublin 8
The decision of the Tribunal was as follows:-
This case came to the Tribunal as an employee teacher appeal against Rights Commissioner Decision r-150398-pw-14 under the Payment of Wages Act, 1991.
The background was that the appellant’s no longer qualified for the S.E.N. allowance when she moved schools and took up a permanent post on the 31st of August 2014. She sought reinstatement of the allowance.
The appellant’s position was that she had been a teacher in a Cork school (USC) for eight years under a contract of indefinite duration and was in receipt of a S.E.N. allowance for the last six years of that employment. She applied for a permanent post in another school (RMC) and was successful and transferred to this post on the 31st of August 2014. In this new post she was performing the role appropriate to receiving the S.E.N. allowance at the new school. A Letter from the principal of RMC was shown to the Tribunal confirming this.
She was not informed prior to transferring to the new role that she would lose her S.E.N. allowance or made aware of Circular 0008/2013 that issued from the Department of Education and Skills. On receipt of her first payment in her new role she realised her S.E.N. allowance was not paid and then subsequently received a letter confirming the position.
The respondent on behalf of the Department of Education and Skills stated that the Minister for Education had the legal authority with the concurrence of the Minister for Public Expenditure and Reform to set rates of pay and to set the qualifying criteria to be applied to obtain a particular rate of pay under Section 24 of the Education Act 1988. Circular 0008/2013 entitled “Budget 2012- Public Service- Wide Review of Allowances and Premium Payments” issued on the 25th of January 2013 due to the financial crisis facing the government at the time and tough decisions had to be made. At paragraph 23 the circular stated that an S.E.N allowance would cease when a teacher moved from a job unless that teacher was “compulsorily reassigned”. At Appendix 4 the appellant’s scenario was outlined and it was submitted that, in this instance, the appellant chose to move voluntarily and, therefore, the allowance did not continue to apply after the move to a new school.
It was further argued that a circular had been circularised as required to Management Bodies, Education Partners, Principals so that it could be brought to the attention of their staff. Furthermore it was posted on the Department’s website and to the Teachers representative bodies. The Circular issued on the 25th of January 2013 well in advance of the appellant’s voluntary move to another school on the 31st of August, 2014.
After the Tribunal heard sworn testimony and submissions confirming the positions of the parties, the Tribunal was told that it would be sent a copy of the pertinent contractual documentation given to the appellant so that it could consult prior to arriving at a determination.
Determination:
The Tribunal heard the evidence and submissions of the parties, reviewed Circular 0008/ 2013, the Contract of Continuous Employment of the appellant and Section 24 of the Education Act, 1998.
It is clear that the appellant’s contract of Continuous Employment states that the appellant’s salary is to be in accordance with the Department of Education and Science (now the Department of Education and Skills) scales. In turn the Minister of Education and Skills does have the legal authority under Section 24 of the Education Act 1988 to set the terms of remuneration from time to time. The Minister of Education and Skills did so under Circular 0008/2013 which clearly states that if a teacher voluntarily moves school after the 1st of February 2014, that teacher will no longer qualify for their S.E.N allowance. The circular did not differentiate between teachers who continued to perform functions appropriate to receiving an SEN allowance and to those who did not.
The tribunal has to accept that while the appellant in her evidence stated that she had not been made aware of the existence of Circular 0008/2013, it had been published by the Department of Education and Skills as required.
The Tribunal does not have the jurisdiction to adjudicate on the fairness or otherwise of the Circular in respect to its application to the particular circumstances of the appellant where, on her move to another school she continued with the functions associated with the payment of an S.E.N allowance.
It is therefore the conclusion of the Tribunal that the cessation of the S.E.N allowance was a lawful reduction and not an unlawful deduction as set out in Section 5 of the Payment of Wages Act,1991.
The appeal against Rights Commissioner Decision r-150398-pw-14 under the Payment of Wages Act, 1991, must therefore fail.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)