ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00007836
Parties:
| Complainant | Respondent |
Anonymised Parties | Deputy Principal | Public Education Body |
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-00009908-001 | 24/02/2017 |
Date of Adjudication Hearing: 19/06/2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 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:
This is a claim for a Qualification allowance in respect of a PhD attainment. The claim is denied by the Respondent. |
Summary of Complainant’s Case:
The Complainant works as a Deputy Principal in a Secondary School .In 2006, he commenced a PhD course for which he was awarded a PhD, Arts on 26 November, 2014.He was aware from the outset of the course that he would obtain the right of an increase in salary for the attainment of the PhD. It was for this reason that he was not permitted a refund of €16,270 in fees paid through the Teachers Refund Scheme. The Complainant submitted that the additional allowance for PhD stood at €6140; however, he was already in receipt of a Masters allowance of €5496, leaving the amount claimed at circa €750 per annum. The Complainant told the hearing that the timetable of PhD study ran in parallel with the calendar year rather than the typical academic year. He originally registered for a three year programme 2006-2008 and continued to work on the Research PhD after this .Formal registration was not requested by the College in 2009.The complainant submitted that the following chronology : 2010: Registered and Fees were waivered 2011 Registered, paid fees, attended summer school .Retrospective leave of absence for that year. 2013 Registered and paid fees 2014 Viva Voce completed in 2014, Registration was not required .PhD awarded in November 2014. The Complainant applied for payment of a qualification allowance to registered teachers on 22 December 2014.The Complainant received a response from the respondent on 2 April, 2015 which sought further details in support of his application .The Complainant responded on 27 April 2015. On May 5, 2015, The Respondent denied application of the allowance on the application of the terms of the respondent Circular of 0008/2013. The letter stated that ; 1 Qualification allowances were payable to those teachers who were first employed on or before December 4, 2011, where qualifications were acquired on or before December 4, 2011. 2 No further allowances were payable with the sole exception arising in the case where ; At December 2011, a teacher in employment on that date and eligible for receipt of a qualification allowance in respect of the post held on that date was actively undertaking a course of further study leading to an additional qualification, provided that the teacher does not cease to be a registered student on that course before its completion. The Complainant then sought the advice of his Union. By way of background, the complainant stated that 10-12 PhDs are completed annually in Secondary teaching. The Complainant submitted that he took a retrospective leave of absence from the course dated March 2012 , which reflected the calendar year of 2011 .He cited work ,family and school changes as the reasons for this .He had no idea that a leave of absence would be raised by the respondent when this was not a live factor at the commencement of the course of study .He argued that the circular used an arbitrary criterion of registration which was not appropriate in the face of a lack of any obligation for him to register and pay fees in the aftermath of the submission of his Viva Voce early 2014. The Complainant sought that his case would be considered on the unique status.
The Complainant submitted a letter from his parent college “The Complainant was registered for the PhD (Arts) from January 2006.he was granted official leave of absence for the year January to December 2011.This is not considered a withdrawal from the course ……” |
Summary of Respondent’s Case:
The Respondent is a Government Body and denied the claim taken under the Payment of Wages Act, 1991. The Respondent confirmed that the complainant had not submitted an application for refund of fees to the Teachers Education Section and that the time had elapsed for such an application from 16 April, 2016. The Respondent made a Preliminary argument on time limits and submitted that the complainant was outside the statutory time limit .The Complainant applied for the allowance on 22 December 2014 and he was advised by letter dated 5 May, 2015 that his claim could not be sanctioned .The Complainant presented his complaint to the WRC on 24 February, 2017, some two years after the application was refused and nearly two and a half years since his PHD was awarded. The Respondent relied on Section 6(4) of the Payment of Wages Act, 1991.The respondent contended that the claim was lodged outside of the statutory time limit and was unaware of any exceptional circumstances which prevented the earlier presentation of the complaint. The Respondent presented some background on the changes in Teachers Salaries under the Financial Emergency Measures in the Public Interest Legislation. Qualified teachers were traditionally paid on a common basic pay scale with additional allowances linked to commensurate qualifications .Section 24(3) of the Education Act, 1998 provides that the respective Minister determines the terms and conditions of employment .As part of the 2011 Budget, the Government introduced €6 billion savings measures . As part of these measures , all new entrants to the public service were placed on reduced salary scales and placed on the first point of the pay scale .The Respondent submitted Circular 40/2011.As part of Budget 2012,teachers of new entrant status were eligible for qualification allowances up to a maximum of Honours Degree only .In addition, no new qualification allowances were paid to existing teachers for any qualification achieved after 5 December, 2011.The teachers who were undertaking courses at that time were placed into a public service wide review of allowances conducted by the Department of Public Expenditure and Reform .(DPER) Following Budget 2012,qualification allowances were to be abolished for all new teachers from February 2012.A new pay scale emerged ,where the starting point was set down as fourth point of the incremental scale .These changes were implemented by way of Circular 0008/2013 which issued on 25 January , 2013.The circular specified in Section 12: In the case of persons first employed in a qualified capacity in a teaching position in an Oireachtas funded post on or before 4 December 2011,qualification allowances are payable in respect of qualifications acquired on or before 4 December, 2011. No allowances are payable should the individual acquire a further qualification regardless of the purpose of the qualification or the date of commencement of the course of study .The sole exception to this position arises where as at 5 December, 2011, a teacher in employment on that date and eligible for receipt of a qualification allowance in respect of the post they held on that date ,was actively undertaking a course of further study leading to an additional qualification , provided that the teacher does not cease to be a registered student on that course before its completion .Such individuals may apply to the Respondent as appropriate for a derogation from the general position within 3 months of the date of receipt of the award . The Respondent submitted that the Complainant was paid as a qualified teacher on the pre 2011 pay scale and also received a Masters allowance plus a Higher Diploma allowance since April 1999.The Complainant was awarded his doctorate on 27 November, 2014 which came after December 5, 2011. He applied for the Doctoral allowance on 22 December, 2014. The Complainant had recorded “ a tick “ in the “ yes “ box on the application form in response to whether he had ceased to be a registered student on any date between 5 December 2011 and the date of the course completion? . The Respondent contacted the awarding University, who confirmed that the complainant was not registered on the PhD course in 2011, due to a retrospective leave of absence .As the complainant had achieved the PhD after December 5, 2011 and he failed to satisfy the Section 12 criteria set down in Circular 0008/2013, the PhD allowance could not be sanctioned. The Respondent rejected the “legitimate expectation “argument advanced by the Complainant .They relied on Dunne J. comments in Curran V Minister for Education and Science [2009] IEHC 378 (unreported, 31 July 2009, 4 IR 300) where a challenge taken against the suspension of the Early Retirement for teachers was unsuccessful when Justice Dunne found that the suspension of the scheme was taken in the public interest and that must outweigh any such legitimate expectation. The Respondent contended that Circulars issued in 2011 and 2012 could not have raised an expectation that an additional allowance would follow on completion of that course of study. The Respondent argued that the Complainant had at all times received the salary which was properly payable and the PhD allowance is not properly payable to him. The Respondent concluded in re-affirming the breach of statutory time limits in the case and submitted that the claim should be rejected. At my request, the respondent submitted background details on the origin of the allowance. The common salary structure , incremental credit and common qualification allowances emerged from the Ryan Tribunal in 1968 .The PhD allowance is at the zenith of the allowance system .This information was copied to the complainant on 21 June 2017 , but did not illicit a response .
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Findings and Conclusions:
I have given careful consideration to both parties’ presentations in this case. In light of the dual presence of a claim for Payment of Wages in addition to the question of fees, not incorporated by the Payment of Wages Act, 1991, I allowed the parties a four week period on the conclusion of the hearing to permit an opportunity to explore a mutually acceptable resolution to the issue .On July 20, 2017, I was informed by the Respondent that there had been no further correspondence from the Union and I proceeded to commence my decision. Preliminary Issue of Time Limits : The claim was lodged before the WRC at 16.45hrs on 24 February 2017.The WRC responded to the claim on 9 March 2017 stating that the claim could not be processed until the matter of the date that payment should have been received was clarified. On March 16, 2017, the Complainant submitted that “The date that is sought is not a date that I have managed to ascertain in view of the fact that the Respondent have refused to acknowledge my legitimate expectation of a payment for the attainment of the degree of PhD.” He enclosed the chronology of the file, much of which is covered by Legal Privilege in terms that it amounts to letters seeking advice from the Union and a letter to the Ombudsman’s office. This correspondence was notified to the respondent and the matter proceeded to an Adjudication hearing. In seeking to establish the date of alleged contravention at hearing, I was informed by the Union on behalf of the complainant that the breach was continuous and the Union rejected that the complainant was restricted by the statutory time limits. The Respondent, on the other hand relied on the submission that the claim was submitted two years after the request for the allowance was refused and was, therefore statute barred under Section 6(4) of the Payment of Wages Act, 1991. They also submitted that no exceptional circumstances were submitted to justify the delay in submission of the complaint. In my consideration of both submissions, I have been guided by Section 41(6) of the Workplace Relations Act, 2015 and note that Section 6(4) of the Payment of Wagers Act, 1991, was substituted by Section 52(1) of the Workplace Relations Act, 2015. Section 41(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. In a case heard by the Labour Court on appeal, in The Institution of Engineers of Ireland and Richard Seaver PWD 177 ,the Court detailed an expansive interpretation and application of the seminal case of HSE V Mc Dermott [2014] IEHC 331. Mc Dermott was a Medical Consultant who claimed an unimplemented pay increase which was with held by his Employer from 2009. He lodged his claim on 16 June 2011, making reference to the cognisable period of the claim as being January 1,2011- June 30 ,2011 Hogan J in the High Court ,on appeal from EAT considered the meaning of the term outlined in Section 6(4) of the Act . “ within 6 months beginning on the date of the contravention which the complaint refers “ Hogan J held in para 15 and 16 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 . 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 a Rights Commissioner in June 2014 will still be in time for the purposes of Section 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 be then out of time . The Court in Seaver applied the Law as set out in Mc Dermott and considered just how the complaint was framed in the original complaint to the WRC and held that : As framed, the Court finds that the complaint has its origins in an action of the respondent that commenced in 2009 .The Complaint was not submitted to the WRC until May 2015,some six years later …..The Court finds that as framed it must decide that it was commenced outside the statutory time limit for the bringing of complaints under the Act. I have considered just how the instant claim was framed? .As stated previously, the portion of the claim form corresponding to date of alleged contravention was left blank on submission and not amended before the hearing .The body of the complaint referred to a generic complaint and was not date specific either .This conflicted with Seaver where the specific years of claim were set out as 2009-2012 inclusive .This led the Court in that case to rule the claim out on statutory time limits. At hearing, the complainant gave evidence that he had been turned down in his application for the qualification allowance in May 2015 .This was accepted by the Respondent .The Union then simultaneously advanced that the breach of the Act was on a continuum up to and including the day of hearing and that the complainants loss was ever present on a day to day basis. The Respondents case was “front and centre “with the HSE argument on time limits in Mc Dermott. They submitted that the claim was compromised through the passage of time from the moment of rejection of the claim in May 2015 and that the complainant could not recover in breach of the statutory time limits. A careful reading of Section 41(6) of the Workplace Relations Act, 2015, had led me to find that I am bound to apply Mc Dermott to my consideration of the framing of the complaint in the instant case. In McDermott , Hogan J drew an analogy” in rolling time limits not being unusual in law” and cited the presence of a period of an 8 year unpaid rent not being impeded by the statute of limitation in seeking to recover some element of the unpaid amount . I see the merit in that argument in the instant case. It is clear that there was a delay in submitting this complaint before the WRC, however, I accept that the unimplemented qualification allowance occurred on a continuous basis and I find that given the framing of the complaint on paper and at hearing, I have the jurisdiction to permit an examination of this claim for the period 25 August 2016 to the date of claim of 24 February 2017. Mc Dermott applied. Substantive Issue : The Complainant submits that under the terms of the Respondent circular 0008/2013, he has an entitlement to be paid a PhD allowance .The Respondent has vetoed this claim as the complainant had not satisfied the strict terms of Section 12 of the circular, which governed a derogation from the absolute position of no further payment for qualification allowances in respect of qualifications acquired post 4 December 2011. The Respondent was very helpful in providing a comprehensive background to the evolution of the PhD allowance following the Ryan Tribunal. In addition, the Respondent set out the background to the changes made in the application of the qualification allowance via circulars 0040/2011, 70/2011 and lastly in 0008/2013 .It was agreed by the parties that Section 12 of the latter circular had direct relevance in this case and I have quoted it in its entirety below. The PhD allowance was regarded by the parties as superannuable. Qualification Allowances: Circular 008/2013 Section 12. In the case of persons first employed in a qualified capacity in a teaching position in an Oireachtas funded post on or before 4 December , 2011,qualification allowances are payable in respect of qualifications acquired on or before 4 December, 2011. No allowances are payable should the individual acquire a further qualification regardless of the purpose of the qualification or the date of commencement of the course of study. The sole exception to this general position arises where as at 5 December, 2011, a teacher in employment on that date and eligible for receipt of a qualification allowance in respect of the post they held on that date, was actively undertaking a course of further study leading to an additional qualification, provided that the teacher does not cease to be a registered student on that course before its completion. Such individuals may apply to the Respondent as appropriate for derogation from the general position within three months of the date of receipt of the award. The Respondent vetoed the application for the allowance on 5 May 2015 1 The Respondent rejected the complainant’s assertion that he had not ceased to be a registered student on the course until its completion and interpreted that the leave of absence year of 2011 ruled out his application under the circular. 2 The Respondent also disputed that the complainant was actively pursuing his PhD on 5 December 2011. I have considered the evidence adduced at hearing and both submissions advance at the hearing . I note that both parties held a strong difference of opinion on the interpretation of Section 12 of the Circular with regard to their respective positions .The Respondent contended that they applied the Circular to the application form and subsequent clarifications submitted correctly and were unable to sanction the award .The Complainant argued that the Respondents literal interpretation was overly stringent .He argued that his case went “ beyond what the circular covers “ and he was not aware of the implications of his academic leave of absence retrospectively applied for the year 2011 in March 2012. Section 5(6) of The Payment Of Wages Act , 1991 provides 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 (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 aforesaid) are paid to the employee, Then, except in so 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. I am satisfied that the Qualification allowance amounts to wages in accordance with Section 1 of the Act. I believe that it is an important feature of this case that the Complainant had not been backed financially on a fees support mechanism by the Respondent from the outset of his course in January 2006. He told the hearing that he did not have a personal awareness of the terms of Circular 0008/2013 during his pursuance of his course. The Complainant has recorded an almost 9 year commitment to the highest educational attainment in his profession, that of a PhD .It appears he undertook this while also working at a Senior level at his School which was going through a transitionary leadership phase . It is certain that the Respondent sought to agree to protect the “ live “ students in pursuit of Qualification allowances post December 5 , 2011 by way of Section 12 of the Circular .This was a challenging period in the Public Service during the economic recession of this country . It struck me as interesting that the application form, which the complainant submitted on 22 December, 2014 did not state that it formed an application for derogation. It did however contain the clauses from Section 12 1 active undertaking of the course on 5 December, 2011 And 2 no cessation of registration between 5 December, 2011 and date of completion. The Complainant answered yes to both of these questions and clarified that his cessation of registration referred to the aftermath of his viva voce where amendments required to his thesis were not necessarily accompanied by the need to register. Both parties submitted a letter from the University Records and Examination Office which confirmed the period of official leave of absence for 2011 and stated that “ This is not considered a withdrawal from the course “ I accept the Respondent evidence on the stark budgetary background to this case, where all applications for allowances were revised and curtailed in most cases, save the Section 12 rider .I am also struck by the strong arguments advanced by the complainant and the commitment he gave to completing his course which was accompanied by an expectation that he would receive the financial award for it. I find that the complainant’s terms and conditions were subject to Circular 0008/2013. I am not satisfied that he was made sufficiently aware of that application during the course of his course work. I note that the circular issued in January 2013 and I could not establish if the Respondent placed the complainant on notice of the material changes . I appreciate that previous circulars had indicated that the allowance would be tied up in a National review, but given that there were only 10 to 12 candidates annually in similar circumstances on PhD programmes nationally .It would have been useful if a database of inter party as communication in this regard could have been opened to me. In my reflection of the circumstances of this case, I returned on a number of occasions to the submissions made on the career break granted in 2012 retrospectively for 2011. I consulted the Oxford English Dictionary on the meaning of the word “cease “. It was explained as “Come or bring to an end “and emerged from the Latin, Cessare, to stop. On the complainant’s evidence, I accept that he was formally aligned to the PhD course of learning from 2006 to 2014. The academic leave of absence granted retrospectively in March 2012 could not reasonably be interpreted as disturbing that fact and I find that it amounted to a break and not a cessation as It did not come to an end .It was also apparent to me that the PhD remained an active undertaking throughout this period of time .This was confirmed by the University letter of May 2015. A PhD is a major education award and not usually limited by temporal limitations to record attainment .I can only assume that both parties have benefitted from this educational award in the Respondent school . In an earlier EAT case of O Sullivan V Dept. of Education and Science [1998] ELR 217, the EAT found that the differential in an honours qualification allowance and that of a pass allowance amounted to a deduction in wages under the Act. ……… (2) Whilst there is no specific definition of ‘deduction’ in the Payment of Wages Act, guidance can be taken from the definition of ‘wages’ which includes all sums to which an employee is properly entitled. If an employee does not receive what is properly payable to him or her from the outset, then this can amount to a deduction within the meaning of the 1991 Act. (3) The primary degree (first or second honours) allowance was properly allowable to the claimant and the single honours programme was in all respects an honours degree programme. (4) The non-payment of the qualification allowance appropriate to primary degree (first or second honours) for a single honours degree was an unlawful deduction within the meaning of the Payment of Wages Act 1991. I have found that the Respondent acted in a precipitous manner in the handling of the complainant’s application for a Qualification allowance in the aftermath of his completion of his PhD, which then led to a contested refusal to grant the award. I appreciate that it was an extraordinary time in the history of the State; however, I have found that an Individuals particular circumstances were not sufficiently examined in terms of the separate and distinct PhD study, prior to the refusal to grant the allowance on a continuous basis. From my perspective , I found that ; 1 The Complainant was in employment on 5 December 2011 2 He was eligible for the allowance on that date by nature of his pre 2011 status. 3 He was actively undertaking the course of further study in that he had not dropped out of the course; rather he had an approved rest year of attendance before resumption in January 2012. In applying the reasonable man/woman test: In the event that on 5 December, 2011, a reasonable man /woman met the complainant in the street and posed the question, are you actively undertaking a PhD? , I believe that he would have answered yes, of course. He had registered and paid fees for the year and attended Summer School before transferring the fees to calendar year , 2012 in March 2013. 4 He did not cease to be a registered student before its completion , save the approved time post Vive Voce when the College di not require registration . In conclusion, there are times in the land of academia where the rules of work and the rules of study collide. I have found that this is one of these circumstances. The college permitted a “ pause period “ on the academic work up retrospectively which had no bearing on the eventual award of PhD and should not have hampered allocation of a Qualification allowance, however ,the employer was not party to this decision and was not notified of it .This led to the eventual confusion surrounding the status and positioning of the academic break, applied retrospectively , in the face of a key employment Circular . I find that the complaint is well founded and the qualification allowance is properly payable in accordance with Section 5(6) of the Act . O Sullivan applied.
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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. Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the complaint. I have found that the complaint is well founded and I order the Respondent to pay the Complainant the PhD Qualification allowance from August 25, 2016 having regard for statutory and superannuation deductions . |
Dated: 30th August 2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Payment of a Qualification Allowance for PhD attainment. |