Complainant

Respondent

Parties

Cara  Kennedy

Department Of Education

Representatives

ASTI

Stephen O’Sullivan BL instructed

Chief State Solicitor's Office

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-00068162-001

17/12/2024

The Complainant attended with Mr Bernard Moyniham of the ASTI. She gave her evidence on Affirmation. It was the Complainant’s case that she was placed on the incorrect point on the salary scale where her previous teaching experience in United States of America and People’s Republic of China was not recognised by the Department of Education.

The Respondent was represented by Stephen O’Sullivan BL, instructed by Zoe Hughes of the Chief State Solicitor’s Office. James Walsh, Principal Officer and Oliver Brennan, Assistant Principal Officer attended the hearing with Frances Pillion, HEO attending as witness swearing an Affirmation.

Submissions were received from both parties and relied upon at the hearing.

This complaint was heard with ADJ-00059141.

The Complainant gave evidence that she is a fully qualified teacher registered with the Teaching Council of Ireland and had accumulated five years of full time teaching experience abroad before returning to Ireland in 2023. This comprised two years teaching English as a Second Language in the People’s Republic of China from 2018 to 2020 and three years teaching mathematics in Massachusetts from 2020 to 2023.

The Complainant stated that the Department had refused to recognise four years of that experience for incremental salary credit purposes, namely her two years in the People’s Republic of China and the first two years of her teaching service in the United States of America. She said the refusal was based on the Department's view that she was not "qualified" during those periods.

In relation to her service in the United States of America, the Complainant gave evidence that she worked full-time as a high school mathematics teacher under a valid teaching licence issued by the Massachusetts Department of Education. She stated that she held a recognised teaching licence throughout the three-year period, taught a full timetable, underwent formal evaluations and performed the same duties and responsibilities throughout. She completed the Teach for United States of America Teacher Preparation Programme and a Master of Education degree with Boston University while teaching. She submitted that the Department had recognised the final year of her service after completion of her Master's degree but had refused the preceding two years, despite there being no difference in the work performed. She submitted that Circular 0029/2007 refers to a "recognised teacher" in non-EU countries and does not expressly require a teacher to be "qualified" in the Irish sense during the relevant period.

In relation to her service in the People’s Republic of China, the Complainant stated that she taught English as a Second Language on a full-time basis and that the experience was directly relevant to her current role as an English as an Additional Language (EAL) Coordinator. She gave evidence that the skills acquired in the People’s Republic of China, including supporting language learners, assessing English proficiency, conducting placement interviews and delivering language-focused instruction, are used daily in her current teaching role. She submitted that this experience fell within the Circular's provisions relating to relevant experience obtained prior to qualification and that her former employer had certified the work as satisfactory and relevant.

The Complainant further contended that the Respondent had applied the Circular incorrectly by focusing solely on whether she was regarded as qualified rather than considering the nature and relevance of her experience. She stated that she had raised this issue through the application and appeals process and that documents obtained through a Freedom of Information request suggested that qualification status was the only factor considered.

Finally, the Complainant submitted that the refusal to award incremental credit had significant financial consequences, affecting both her current earnings and future pension entitlement. She stated that her school had recruited her on the basis of her overseas teaching experience and that she was seeking only to have that experience recognised in accordance with the terms of the Circular.

Ms Frances Pillion's Evidence

Ms Frances Pillion, a Higher Executive Officer in the Department of Education with responsibility for assessing applications for incremental credit, gave evidence on behalf of the Respondent. She stated that the Department's assessment was based on Circular 29/2007 and, in particular, Clause 6(a), which provides that teaching service in a non-EU country must be equivalent to approved teaching service in Ireland before it can attract incremental credit.

The witness explained that approved teaching service in Ireland requires service in a qualified capacity. While Clause 6(a) does not expressly use the terms "qualified" or "unqualified", the Department interprets the requirement that overseas service be "equivalent to approved teaching service" as meaning that the teacher must have held a recognised teaching qualification during the relevant period. She stated that to do otherwise would result in a situation where unqualified teaching service abroad could attract incremental credit when equivalent unqualified service in Ireland would not.

Ms Pillion gave evidence that the Complainant's Master of Education from Boston University was accepted by the Teaching Council as the qualification that enabled her registration as a post-primary teacher. The Department therefore regarded the Complainant as qualified only from the completion of that qualification. She stated that, for this reason, the Department awarded incremental credit in respect of the Complainant's teaching service in the United States from September 2022 to August 2023 but refused credit for the earlier period from September 2020 to August 2022 and for her teaching service in the People’s Republic of China from 2018 to 2020.

In response to questions regarding the Complainant's experience in the People’s Republic of China, Ms Pillion stated that the applications received from the Complainant were applications for teaching service and not for Relevant Non-Teaching Experience under Clause 6(c) of the Circular. She stated that no application under that category had been received. While the Department would consider any such application if submitted, her view, based on the information available, was that the experience described by the Complainant constituted teaching service rather than relevant non-teaching experience.

The witness maintained that the Department had considered the documentation submitted and had applied the Circular in accordance with its established interpretation when assessing the Complainant's entitlement to incremental credit.

Legal Submission

The Respondent submitted that there had been no unlawful deduction of wages under the Payment of Wages Act 1991. It submitted that the Complainant had been paid all wages properly payable under her contract and that incremental credit is not a contractual entitlement but a matter for determination by the Department under the Circular 0029/2007.

It was submitted that the complaint amounted to an attempt to appeal the Respondent’s incremental credit decision through the Payment of Wages Act 199. The Respondent relied upon Section 24.3 and Section 24.6 of the Education Act 1998 and Section 31.5 and Section 31.6 of the Teaching Council Act 2001. It was submitted that the caselaw that held that entitlement to incremental credit is a discretionary matter and does not constitute wages properly payable for the purposes of the Act. The Respondent relied upon Clinton v St Anne’s National School PW 70/2007, Department of Education v. McKenna ADJ-00015510 and Rachel Burke v. Department of Education ADJ-00052315

Accordingly, it submitted that the complaint should be dismissed.

Section 5 of the Payment of Wages Act 1991 sets out the regulation for 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 ofan 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.”

Clause 6 (a) of Circular 0029/2007 deals with “Other Reckonable Service”, under the heading Teaching Service in Non-EU Countries, it provides as follows: -

‘(i) Whole-time teaching service given in a Non-Member State of the EU and demonstrated by the teacher, to the satisfaction of the Department or Chief Executive Officer of the Vocational Education Committee as appropriate to be equivalent to approved teaching service may be regarded as approved teaching service for the purpose of this sub-section’.

The Complainant submitted that the Respondent incorrectly applied Clause 6(a) of Circular 0029/2007 when assessing her overseas teaching service in the People’s Republic of China and the United States of America and that she ought to have received further incremental credit.

The Respondent submitted that no unlawful deduction of wages had occurred. It contended that the Complainant had been paid all wages properly payable under her contract of employment and that entitlement to incremental credit is not a contractual right but is determined by the Department in accordance with the Circular.

Clause 6(a)(i) of Circular 0029/2007 gives the Department discretion in determining whether such service is equivalent to approved teaching service and attracts incremental credit. Neither the United States of America nor the People’s Republic of China are Member States of the EU and therefore fall within scope of Clause 6 (a) of the Circular.

The Labour Court in Department of Education v McKenna (PWD1914), held that the Circular confers discretion on the Respondent to determine whether non-EU teaching experience is equivalent to approved teaching service for the purpose of incremental credit. The Labour Court found that entitlement to incremental credit was not a contractual entitlement but depended upon the exercise of that discretion. The Court further held that incremental credit did not constitute wages that were “properly payable” for the purposes of the Payment of Wages Act 1991 where the Respondent had determined that the service did not qualify.

Having regard to the Labour Court, I am satisfied this complaint concerns the Respondent's assessment of the Complainant's entitlement to incremental credit under Circular 0029/2007 rather than a deduction from wages properly payable under her contract of employment.

Accordingly, the Complainant was paid the salary applicable to the point on the incremental scale determined by the Respondent and no unlawful deduction, within the meaning of Section 5 of the Payment of Wages Act 1991, occurred.

Therefore, I find the complaint is not well founded. 

For the reason outlined above, I find the complaint is not well founded.