Complainant

Respondent

Parties

Cecilia  Madden

Limerick And Clare Education And Training Board

Representatives

Glenn  Dundon Callanan LLP

Keevagh Heverin Ibec Mid West & Kerry

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-00064904-001

22/07/2024

The complainant submits that the respondent has failed to pay appropriate allowances due.

The respondent is Limerick And Clare Education And Training Board (LCETB) and runs the Limerick School of Music (LSM).  The claimant commenced employment with LCETB on 01/12/2014 and is the current Principal of the School of Music in LCETB, since 01/09/2022. Cecilia Madden had for many years been requesting that her Principal's Allowance be increased to the level applicable to a Category XII school (instead of Category V). In June 2023 the employer agreed to that increase (emails from Ms A, Director of Organisation Support and Development, dated 9 June and 12 June 2023). Despite that agreed contract increase, the employer has failed to pay the increased Principal's Allowance. Due to the number of teachers at the school which is between 25 – 29 Whole Time Equivalents, she is entitled to Category XII allowances. The principal and deputy principal allowance at Category V as of 01/06/2024 were €19,754 and €11,556 respectively. The loss for the 6 month period up to lodging the claim for the Principal was €8,696.24 and Deputy Principal was €6,079.42 and there are incurring losses thereafter.

Ms Madden was appointed principal from 01/09/202 and Ms Ryan was appointed deputy principal on 01/09/2022.  There are 32 teachers with 28.8 WTE teaching.  This would equate to category XII within the Department of Education’s circulars.  The school is currently categorised as Category V as having 9-10 teachers despite the true size being category XII.  The miscategorization is affecting the professional compensation of senior managers and day to day running of the school including understaffing at middle management level. 

On 04/10/2022 Ms A Director said that the preference would be to try and find a solution to queries from the complainant about the allowance and there was further engagement about this and a process began to engage with the department of education on the matter.  It was communicated that the recategorization of the allowances was the outcome and not the recategorization of the school.  Ms A was advised that they had also queried this with their union representative and Ms A replied on 09/06/2023

“it would have been helpful if I had known I have been engaged all week in discussion with Department and today got agreement to recategorization of your allowance.  When asked I told the Department the union was not involved.  I will be in touch when HR have an opportunity to calculate your new allowance etc”.

Despite this assurance by August 2023 the allowances had not been paid.  Between 21/08/2023 and 23/08/2023 there was a change and the complainants were advised

“the matter has been referred to the department of education circular and assessment policy unit and we are still awaiting a response on same”.

It was submitted that the allowances are provided for within a contract and this was provided for within the 2022 contract as well as the email from Ms A in June 2023.

On 21/06/2024 it was confirmed to the complainants by the Minister of State for Skills and Education that Category V allowances would continue to apply as:

“the terms and conditions of the Principal and Assistant Principal for the schools of Music would have been in place and known at the outset of such appointments”…It is difficult to see how they would be liable for the payment of higher allowances”.

The complainant submitted that there was a binding promise to increase the allowances and that Ms A was clear that the Department had given approval.  It was also submitted that Ms A had the authority to give that binding promise on behalf of the respondent as Ms A was director.  Ms A made a promise and the complainant worked on the promise of that allowance.  Failure to pay such allowances that were promised is a breach under the Act.

Evidence of Ms Ceclia Madden Complainant

The evidence of Ms Madden was that she was deputy principal and on 01/09/2022 she was promoted to Principal.  The school is multi-faceted with nearly 500 students.  When she was appointed in 2014 Category V allowances were referred to and she noticed the reference to Category V  allowances in her contract and discussed it at the time and was told that it was an out-of-date report that hopefully would be sorted.  When she was appointed, it referred to Category V and that is what she has been paid and she felt this Category V was incorrect and engaged with the respondent about it.  The issue was reported and it impacts on other areas and she believed the respondent and Ms A was receptive and positive in their discussions with her and there was no reason to believe that Ms A was insincere.  Circular 0043/2024 does not directly apply.

Cross Examination of Ms Madden Complainant

Under cross examination she said that they consider themselves post primary school and did not say she was unaware of the category that the department referred to in 2024.

Evidence of Ms Anna Jane Ryan

The evidence of Ms Anna Jane Ryan was that she was employed as a violin teacher in 2005 with the respondent and was promoted to Assistant Principal and then to Deputy Principal in 2022 and she did not sign this contract as she saw the allowance and queried why it was a small increase in an allowance despite the promotion and she emailed about it.  The school is not like a normal secondary school and they are paid as post primary teachers and there are 32 teachers and there were follow up emails.  MS A followed up and there were encouraging meetings about it and Ms A did brilliant work in moving things along.  There was frustration though with the speed and there was no reason to believe that what Ms A had said in the email was not true.

Cross Examination of Ms Anna Jane Ryan

Under cross examination she said that Ms A agreed the school was not categorised correctly with the allowance of Category V.  She confirmed she has been in receipt of Category V allowance and has not been in receipt of Category XII allowance and said the respondent is her employer and that Ms A had been working with the Department of Education.

It was submitted that the Respondent is the state education and training authority for the Limerick and Clare region in Ireland and is governed under the Department of Education and all salaries are set by the Department of Education. LCETB follow these pay scales for their employees.

The complainant commenced employment with LCETB on 01/12/2014 as Deputy Principal in Limerick School of Music. She has held the role of Principal of the School of Music in LCETB, since 01/09/2022 working fulltime on an annual salary of €100,696. This comprises of a Teacher’s salary of €71,478 which is currently point 21 on the scale plus other allowances including Principal Allowance at Point V on the allowance scale which includes an allowance of €20,350, H Dip Allowance of €1,505, a Master’s Degree Allowance of €6,695 and a work phone allowance of €667.89.

The salary scale is aligned with that of a Post Primary school Teacher Salary Scale with the exception of the Category allowance scale which is capped as per a circular for all Schools of Music nationally . In this circular it states that schools who have between 25 – 29 Whole Time Equivalents, which equates to 21,181 hours are entitled to be on Point V of Category allowances scale. The Limerick School of Music falls into this category and the Complainant is in receipt of allowances based on this.

In November 2022 Ms A then LCETB Director of Organisation Support and Development was requested to review the Category allowance for the Limerick School of Music (LSOM) and Ms. A engaged and investigated and was told on 09/06/2023 there had also been engagement with the union representative.  On 09/06/2023 Ms A indicated in an email that following engagement with the Department of Education (DoE), an agreement in principle was reached to recategorize the Complainants’ allowances and would be in touch when HR had an opportunity to calculate new allowances. No effective date or amounts were agreed.

On 12/06/2023 Ms A clarified that the LSOM recategorization of the school to the status of Post primary School was not the outcome, only the recategorization of the allowances. On 19/06/2023,  Ms A was advised that the recategorization was sent to the DoE Curriculum and Assessment Policy Unit who would look to approve the allocation for the school. The DoE would have to agree to any re-categorisation as this would have an implication nationally and only the DoE could sanction any such re-categorisation.

As Ms A was retiring, the handling of the query was handed over to Breda Flynn (Head of HR). Further engagement followed including with the union representative who had been addressing the matter of the category of the allowance for the LSOM. On 07/12/2023 TUI received an email from the DoE’s stating that the terms and conditions of the principal and Deputy principal for the Schools of Music would have been in place and known at the outset of such appointments and in that context it would be difficult to see the LSOM would be liable for the payment of higher allowances. It was also stated that were any claim for a change to terms and conditions to be made then the Teachers Conciliations Council is the appropriate forum. No recategorization was ever made for the Complainant’s allowance and no payments were ever received by the complainant in relation to the re categorization of allowances.

Under the Act the question arises if the wages were “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 and in the payslips dated from 23/01/2024 to 22/07/2024 where wages were paid in full with the associated allowances. No deduction within the meaning of the Act has been made and the Complainant was properly paid. Although the respondent recognises they should not have written to the Complainant to express that a recategorization had been agreed in principal, all parties were aware that Ms. A did not have the authority to make a decision on the recategorization and that this was a matter for the DoE. The DoE made it clear as per their email on 07/12/2023 that no re-categorization of allowance would be made to the Complainant. There was no intention to create legal relations and there was no intention by Ms A that the email of the 09/06/2023 would be legally binding.

The Respondent fully refutes the claim and submits that there has been no breach of the 1991 Act and respectfully requests the Adjudication Officer finds that the claim taken is without merit, and therefore must fail, on the basis of this submission and documents provided within.

The complainant submits the respondent has not paid an allowance owing and the respondent submits that the complainant is paid an allowance for Category V which are the monies properly payable to the complainant. 

S1(1) provides

"wages", in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

Section 5 sets out

Regulation of certain deductions made and payments received by employers.

5.—(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.

It was not in dispute that in 2002 the respondent was Categorised as Category V by the DoE for the purpose of allowance and this category had remained.  The respondent is not considered a post primary school but is paid salaries and allowances similar to post primary schools and the school has 28.8 WTE.  As it is not a post primary school there is not an automatic application of DoE circulars that might apply to an actual defined post primary school.

It was not in dispute that the complainant took up a new position effective 01/09/2022 and the contract of employment which did not appear to be signed outlines that the complainant’s position is Principal of the School of Music in LCETB, that includes an allowance of “Category V for Limerick School of Music”.

It was not in dispute that there were discussions between the Director of the respondent Ms A requesting a recategorization of the allowance for the complainant and that Ms A gave an update on 09/06/2023 that

“today got agreement to recategorisation of your allowance……I will be in touch when HR have an opportunity to calculate your new allowance etc.”

and an email on 26/06/2023 suggested that a section within the DoE might now be dealing with it.  It was not in dispute that around 07/12/2023 the DoE determined that the allowance would not change:

“the terms and conditions of the principal and deputy principal of the school of music would have been in place and known at the outset of such appointments.  In that context it is difficult to see how the Department would be liable for the payment of higher allowances” and no changes were made to the allowances.

The complainant submits that the email of 09/06/2023 created a contractual relationship between the complainant and the respondent and the respondent submits that this was not a contractual relationship and all such allowances are determined and paid by the DoE and that the contract of 01/09/2022 was the valid contract.

In Sullivan v Department of Education [1998] E.L.R. 217, it is set out

“There is no specific definition of a deduction in the Act; guidance can be taken from the definition of ‘wages’ in section 1 of the Act: ‘Any sums payable to the employee in connection with his employment, including: …’

 the Tribunal considers that 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. We take ‘payable’ to mean properly payable.

Marek Balans v Tesco Ireland Ltd [2020] IEHC 55 reviewed Dunnes Stores (Cornelscourt) Limited v. Lacey [2007] 1 I.R. 478 where the question of remuneration properly payable to an employee was considered as the first matter to be determined.  It also highlighted Babianskas v. First Glass Ltd [2016] IEHC 598 which denied that an inference should be drawn for accepting a lesser sum than initially contractually entitled to.  In Balans v Tesco a signed contract by both parties for the greater amount was deemed sufficient to find in favour of the complainant in that instant case.

It did not appear to be disputed that the contract effective 01/09/2022 albeit not signed was a valid contract with appropriate offer and acceptance between the parties.  The complainant submits that what Ms A issued to the complainant on 09/06/2023 was also another legal contract with an offer by the respondent to the complainant.  However, there is no effective date within nor within any of the correspondence that followed between the parties.  It is difficult to see how there could be acceptance by the complainant without a legal offer.

Ms A refers to on 09/06/2023:

“today got agreement to recategorisation of your allowance”

and it is notable that this does not specifically set out what is the allowance

Further on it sets out

“It will be category XII.” (my emphasis)

And on 12/06/2023

“the effective date is not as yet agreed”

and on 26/06/2023 outlines:

“Hopefully an early and positive decision will be reached” (my emphasis). 

Then on 28/08/2023 the complainants are advised

“the matter has been referred to the Department of Education Circular and Assessment Policy Unit and we are awaiting a response on the same”

Having taken into consideration the evidence and submissions of the parties I find that the complainant was working under the terms of the contract of 01/09/2022 whereby the allowance is “Category V” and which was the allowance received.  The complainant has therefore not identified any other monies that are properly payable during the cognisable period and I find that the complaint is not well founded and I dismiss the complaint. . 

I find that the complaint is not well founded and I dismiss the complaint. 

Allowance, contract, offer, acceptance, payment of wages