Complainant

Respondent

Parties

Elizabeth  Collins

St Michaels School Chapelizod Holy Angels

Representatives

Conor McDonald Association of Secondary Teachers Ireland

Lorcan Maule Mason Hayes and Curran

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-00065744-001

02/09/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant gave her evidence under affirmation while a witness for the respondent gave her evidence under oath.  Cross examination was facilitated.

The complainant submitted that she was employed as a teacher on a special purpose contract.  She submitted that she applied for and was employed in a position as a post-primary teacher for 21 of a possible 22 hours.  She submitted that she was told that this was a post primary position and that it was advertised as such in the recruitment process.  She stated that she was only paid as a primary school teacher for 21 out of 25 hours and that resulted in her being paid less than the amount that she signed on for.

It was submitted that her contract was therefore null and void.

In evidence she outlined that the school principal who recruited her also understood that the position was to be paid as a post-primary teacher.  She accepted that the difference between the two rates meant an annual shortfall of €8,114.62 and confirmed that she was only seeking six months amounting to €4,057.31

The respondent submitted that the complaint has been taken outside the time limits provided for under the Act.  The complainant signed her contract of employment as a primary school teacher ands submitted a primary teachers appointment form on 30 August 2023.

The respondent submitted that arising from the Labour Court decision in Hanley v BoM, Scoil Mhuire Gan Smal, PWD231, that the complaint is out of time in that the complaint relates to 1 September 2023 and the complaint was only submitted on 2 September 2024, 12 months plus one day after the payment fell due.

The respondent submitted that, in the alternative, that the complaint is seeking to rectify her contract and is seeking something that is not properly payable under the contract of employment she signed.  In that regard, the respondent made reference to the deliberations of the High Court in the case of Balans v Tesco [2020] IEHC 55 and posited that it is not open to the WRC (nor for that matter, the Labour Court) to amend a contract and thereby usurp a remedy that is not within its powers.

In evidence, the school principal agreed that the position advertised was a post-primary position and that she was of the understanding, at that time, that the position was paid accordingly.  She confirmed that the complainant signed a contract for primary hours and also completed a Primary Teachers Appointment form.

There is no argument that the position which the complainant applied for was advertised as a post-primary position or that the school thought that the position would be paid in accordance with post-primary pay scales.  However, there is also no disagreement as to the nature of the contract signed and the Primary Teachers Appointment form as completed.

The respondent argued that the complaint was out of time and submitted that the case of Hanley v BoM, Scoil Mhuire Gan Smal, PWD231, is applicable.  However, in its deliberations, the Labour Court states:

The originating complaint in this matter was received by the Workplace Relations Commission on 6 October 2021. Having regard to the decision of the High Court in Health Service v McDermott[2014] IEHC 331, a complaint under section 6 of the Act to be validly framed (in the absence of any extension of time) must relate to deductions claimed to have been made within the six-month period that ended on the date of the receipt of the complaint by the Workplace Relations Commission. Having carefully considered the Parties submissions and the actual wording used by the Complainant in her complaint form, the Court finds that the latter does not make reference to alleged deductions within the relevant period. The Court has no option, therefore, but to find that the complaint is not framed in a manner that brings it within time.

The six-month cognisable period in this case relates to the six-month period prior to the complaint being lodged and runs from 3 March 2024 to 2 September 2024.  This was accepted by both parties.

In this case, the complainant indicated in her complaint form that her employment ran from 30 August 2023 to 31 August 2024 and also indicated that “I have lost out on wages of 3 hours per week since 1/9/23 and as a result suffered unnecessary financial hardship.”  In this regard, with the inclusion of the word “since”,  I am satisfied that the complainant has made reference to alleged deductions within the relevant period.  Accordingly, I find that the matter is not out of time.

As to the second matter posited by the respondent, the complainant’s representation stated that the contract is null and void as it was concluded on the basis of false information having been provided.  It was suggested that the contract should have related to the post-primary payscale.  As mentioned above, the respondent made reference to the deliberations of the High Court in the case of Balans v Tesco [2020] IEHC 55 and posited that it is not open to the WRC (nor for that matter, the Labour Court) to amend a contract and thereby usurp a remedy that is not within its powers.

In that decision McGrath, J noted at paragraph 43

Further, I accept counsel for the appellant’s submission that in the circumstances of this case any error made in the drafting of the contract is not to be equated with a deficiency or non-payment attributable to a computational error within the meaning of s. 5(6). It does not appear to me that s. 5(6) of the Act was designed to permit the effective rectification of a contract which, on the submission of one of the parties, contains an error.

Having regard to the foregoing, I find that it is not open to me to substitute a theoretical contract relating to the post-primary payscale for the actual contract signed between the parties which may have contained an error.  I therefore find that the wages properly payable to the complainant are in line with the signed contract.  Accordingly, I find that the complaint is not well founded and the Act has not been contravened.

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complaint is not well founded and that the Act was not contravened.

Payment of Wages – timeframes – within the cognisable period – error in drafting – no rectification possible under 5(6) of the Act – not well founded - no contravention