FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001 PARTIES : DUBLIN INSTITUTE OF TECHNOLOGY (REPRESENTED BY ARTHUR COX) - AND - ANTHONY QUINN (REPRESENTED BY CULLEN & CO. SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision r-082070-pt-09/TB.
BACKGROUND:
2. The Employer appealed the Rights Commissioner's Decision to the Labour Court. The following is the Labour Court's Decision:-
DETERMINATION:
The matter came before the Labour Court by way of appeal from a decision of the Rights Commissioner under the Protection of Employees (Part-Time Work) Act 2001 (“the Act”).
Facts
Dublin Institute of Technology (“the Respondent) employed Mr Anthony Quinn (“the Complainant”) as an Hourly Paid Assistant Lecturer (HPAL) in February 2006 initially for two hours per week and subsequently in September 2006 on a contract for 20 hours per week. He was re-employed by the Respondent for the academic years commencing in September 2007, 2008 and 2009. The number of hours he worked each week varied in each of those years.
In March 2008 the Complainant requested from the Respondent a “Pro Rata Hours Contract” of employment. Discussions between the parties failed to resolve the matter and on 27thJuly 2009 the Complainant made a complaint to the Rights Commissioner under Section 16(1) of the Act to the effect that his employer had, contrary to the provisions of Section 9(1) of the Act, treated him, in respect of his conditions of employment, in a less favourable manner that a comparable full time employee. The Respondent rejected and contested the complaint.
The Rights Commissioner decided that the complaint was well founded and required the Respondent to
“amend the terms and conditions of the claimant to reflect the fact that he is a Part-time worker and should be treated on a pro rata basis no less favourably than his nominated comparator.”
This decision was appealed to the Labour Court.
The Complainant initially sought to change one of the comparators he had relied on in the complaint before the Rights Commissioner. Following a number of case management meetings conducted by the Court with the parties the Complainant agreed to proceed with the original comparators. A second issue arose regarding the composition of the Court. Two members of the Division of the Court allocated to hear the appeal advised the parties that they had in the past served on the Respondent’s Governing Council having been nominated respectively by the ICTU and IBEC. The Respondent, noting the integrity and impartiality of the two members of the Court, submitted that their involvement in the proceedings might give rise to a perception of bias and objected to their involvement in the appeal. The Complainant raised no objection to their involvement in the appeal. Noting Respondent’s objection the two members of the Court recused themselves from the proceedings and a new Division was appointed to hear the appeal.
At a case management meeting arranged by the Court the parties agreed that the case turned on whether or not the Complainant and comparator were engaged in like work within the statutory meaning of those terms. In order to address this matter and at the suggestion of the Court, the parties agreed to present expert evidence on this point. Both parties commissioned experts to review the work performed by both the Complainant and the comparator and both experts gave evidence to the Court in respect of their findings. The substantive appeal came on for hearing on Monday 25thJune 2012.
Position of the Parties
Both parties made extensive written submissions to the Court. In addition a number of witnesses gave evidence to the Court on the substantive issues involved.
It is common case that the terms and conditions of employment of Lecturer (Grade 1) employees are superior to those of staff employed on HPAL contracts of employment.
Complainant’s Case
The Complainant submits that the Respondent employed him as an Hourly Paid Assistant Lecturer (HPAL) on terms and conditions of employment that were less favourable than those of a named comparable full time employee, Mr Pauric Reilly, who was employed on the terms and conditions of employment attached to the grade of Lecturer (Grade 1).
The Complainant engaged Mr Tom Wall, an expert in the area of job evaluation, to carry out an analysis of the work he performed and compare it to that performed by is chosen comparator within the context of Sections 7 (3) (a), (b) and (c) of the Act.
Mr Wall in evidence told the Court that there is no international job evaluation standards against which such exercises can be conducted. He further said that job evaluation is not a science and involves an element of subjective judgement. He said that he had more than 20 years experience in this area and had carried out a large number of job evaluation exercises in both the public and private sectors including the university sector.
In this case he adapted a scheme he had designed and used in Failte Ireland that had been agreed by both management and staff. He said that he used this scheme because Failte Ireland was responsible for preparing workers for employment in the hotels and catering sectors of the economy. He decided that the similarities between the work carried in this regard by Failte Ireland and the jobs he was comparing in this exercise were sufficiently close to enable him use the same scheme suitably adjusted. He said that he had examined and considered other schemes that had been used in UCG and NUI Maynooth but had decided against using either of those as they were, in his opinion, less suitable for a number of technical reasons.
Mr Wall said that he interviewed the complainant and his chosen comparator and arising out of the information he received from them drafted two job descriptions that he submitted to the Complainant and the comparator for approval. They made very minor amendments to them. He then used the amended job descriptions as the basis for his comparative analysis of both jobs using the job evaluation scheme and method he had selected for this purpose. The job description divided the work into three sections viz Regular Duties, Less Frequent Tasks and External Work. He said that this division enabled him to carry out his analysis of the work done by both the complainant and his chosen comparator against the provisions of the Act.
Mr Wall said that, in accordance with the provisions of Section 7(3) (a), (b) and (c) of the Act he examined the “work performed” by the complainant and his chosen comparator as distinct from the work set out in their respective contracts of employment.
Mr Wall concluded from his analysis that the Complainant and his chosen comparator were not performing like work within the meaning of Section 7(3) (a) of the Act. He concluded that the differences between the two jobs was minor but as there was a difference between their respective involvement in non teaching duties the jobs could not be said to constitute “like work” within the statutory meaning of that term.
Mr Wall concluded that the Complainant and his chosen comparator were, within the meaning of Section 7(3) (b) of the Act, performing the same work or work of a similar nature and any differences between the work performed or the conditions under which it was performed by each either was of small importance in relation to the work as a whole or occurred with such irregularity as not to be significant.
Mr Wall also concluded that the Complainant and his chosen comparator were performing work of equal value within the meaning of Section 7(3)( c ) of the Act. Mr Wall said that he analysed both jobs in accordance with the relevant job evaluation scheme and allocated points to each under the statutory headings set out in Section 7(3) (c) of the Act. The outcome of this systematic analysis was that the Complainant’s job scored 60 points whilst the comparator’s job scored 63 points. He said that this difference was not significant and that the two jobs, in his view, were equal in value. He said that in coming to this conclusion he was mindful of the decision of Keane J inMurphy and others v Bord Telecom 1986in which he said“ the words equal in value should not be used so as to require mathematical exactitude.”
In answer to Mr Mallon, Mr Wall said that the main difference between the Bord Failte job evaluation scheme and that used in UCG and NUI Maynooth related to the relative weighting given to the factor called “Knowledge and Skills”. He said that had he used the UCG or NUI Maynooth schemes the complainant would have fared better than he did under the chosen scheme. He said that, in accordance with the provisions of Section 7(3)(b) of the Act he assessed the frequency with which the comparator performed tasks that the Complainant did not perform. He said that the comparator participated in the World Skills Competition with such irregularity as not to be significant. He said that he considered the comparator’s involvement in that competition was of small importance in relation to the work as a whole. He said that the comparator’s involvement in research was of small importance in relation to the work as a whole as it was confined to a review of the impact of the Solvent’s Directive on Irish industry and was never completed. He said that the comparator’s involvement in the National Skills Competition was of small importance in relation to the work as a whole, was voluntary and was remunerated separately through a travel and subsistence payment from FAS. He said that the comparator’s involvement in course redesign and curriculum development was external work funded and paid for by FAS. He said that he considered that work performed by the comparator for the Respondent was the relevant work and he based his analysis and assessment primarily on that work.
Mr Anthony Quinn, the Complainant, told the Court that the Respondent employed him initially as a substitute teacher commencing in 2006. Subsequently he was given timetabled hours in his own right. He said that he was responsible for delivering courses to students. This involved preparation for and delivery of the relevant curriculum. He participated in exam boards for which he was not paid.
He said that the duties set out in the job description drafted by Mr Wall was an accurate description of the regular, less frequent and occasional tasks he performed in the course of his work. He further said that the external work described in the job description was an accurate statement of his involvement in those activities.
He said that he was involved in the introduction of new courses. He said that he delivered training to the staff of the department related to new solvent cleaning equipment. He said that he attended manufacturers training courses in Germany on new Volkswagen models being introduced by Irish distributor with the intention of writing a data sheet on the technical issues involved and delivering it to the staff of the department. He said that in the event he was not asked to deliver the associated staff training. He said that he developed proposals for a new CPD course on Advanced Refinishing Procedures. This included drafting objectives/learning outcomes; defining course content; developing course materials and examination and assessment criteria. He said that he assisted repeat students as required.
In relation to external work he said that he participated in preparations for the National Skills Competition as a member of the organising committee. He said he acted as an expert/examiner for the National Skills Competition. He said that he attended specialist training in the U.K. with Ireland’s World Skills Competition candidate in 2007. He said he provided specialist custom vehicle painting techniques to the World Skills competitor in preparation for the body art section of the World Skills Competition at the request of the Assistant Head of the Department. He said that his involvement in the World Skills Competition was a voluntary unpaid activity for which he received travel and subsistence expenses from the Department of Education and Science.
In response to Mr Mallon B.L., for the Respondent, he said that he attended a meeting with Mr Wall, Mr Reilly and a union representative Mr Carr at which he gave Mr Wall a verbal account of the work he performed. He said that Mr Wall prepared the job description for his job and sent it to him for his approval. He said that he made some minor amendments to the job description but could not recall them for the Court. He said Mr Carr and Mr Reilly did not engage with Mr Wall regarding his job description. He said Mr Carr facilitated access to the room in DIT in which the interview with Mr Wall was conducted. He said Mr Carr had no further involvement in the matter and did not comment during his interview with Mr Wall.
He said that the language used in the job description was a matter for Mr Wall and not for him. He said that he gave Mr Wall the information he sought but that Mr Wall alone drafted the job description. He said that the job description was accurate and said that the wording was similar because the two jobs were similar.
He said that he attended technical familiarisation training in Germany regarding a new range of Volkswagen models that were being launched in Ireland in order to acquire the information necessary to update the relevant course curriculum and to make it available to other members of the Department. He agreed with Mr Mallon that this did not amount to independent academic research.
He said he delivered a presentation to the staff of the department regarding solvent waste management. He agreed that this was not independent academic research. He said he attended a course in “glassmatics”. He said four other members of staff attended this course. He said he was not paid for the time spent attending that course.
He said that in September 2008 he met with Mr Allen the Assistant Head of the Department. At that meeting Mr Allen told him that he was reducing by 9 his 16 timetabled hours. He said he objected to this development. Mr Allen told him that he was reallocating those hours to another hourly paid lecturer in order to introduce a better balance onto the team.
He said he wrote to the Human Resources Department after this meeting drawing it’s attention to this development.
He said that he subsequently met with Mr Allen and Mr Tom Corrigan who was the Head of the Department at that time. He said that the outcome of that meeting was that he was told that his hours were being reduced and that if he brought a claim forward on the issue his hours would be reduced further.
He said his hours were effectively ended in June 2009 and he was not assigned any further timetabled hours thereafter.
He said that Human Resources subsequently told him his contract had been terminated.
He said he subsequently met with Mr Allen, at his request, in a hotel in Kildare before the Rights Commissioner’s Hearing into his complaint took place. He said Mr Allen said he wanted to meet with him in a neutral venue to see if they could sort something out. He said the meeting lasted for more than two hours. He said Mr Allen told him he was now the Head of the Department and a new head of school had been appointed also a Mr Robert Simpson. He also said that a new Assistant Head of Department has also been appointed a Mr Derek Colley. As a result Mr Allen said he was now in a stronger position regarding the allocation of hours. He said the Mr Allen told him that if he dropped his complaint under this Act he would make sure that he got a minimum of 10 hours per term per week. He said Mr Allen said that he could not put this in writing and that he would have to take his word on the matter.
He told Mr Mallon that he did not accept that he did not engage in academic research. He said he was researching a submission to the European Union seeking Strand 111 funding for a course relating to the correct and safe repair of motor vehicles. He said the research was not finished at the time his employment was terminated.
Mr Pauric Reilly told the Court that he was appointed a College Teacher in DIT in January 1993.
He said that he attended a meeting with Mr Wall, Mr Carroll and Mr Carr in DIT at which he verbally outlined his duties to Mr Wall. He said that the job description prepared by Mr Wall was sent to him for his approval. He said that he approved it as an accurate record of the duties he performed. He said that the regular duties set out in the Job Description reflect the syllabus for the course. He said that no one spoke to him about the job analysis and that it is an accurate description of the work he performs.
He said that his main work involves the delivery of FAS designed courses to students sent to Institute by FAS for that purpose. He said this involves a detailed knowledge of the curriculum, the preparation of lessons; demonstration, supervision and assessment of practical work; the delivery of theoretical modules and the marking of exams.
He said he performs his work during the 35-week academic year and does not attend at the Institute during his holidays. He said that he has never written or submitted an article for publication in an academic journal, delivered a lecture on academic research he has conducted or had any original work or research published in any journal. He said that he had undertaken research for his undergraduate degree as a student. He said that he had commenced research on the impact of the Solvents Directive but had not completed it.
He said that he had provided training presentations to other members of staff of the Department in which he worked. He said the information he relayed in these presentations related to courses he had attended. He said it amounted to three hours work on two occasions over his period of employment with the Institute.
He said that he promoted the Institute to students on the courses he taught by way of advising them of further educational opportunities in the Institute. He said that he did not recruit students onto his courses as they were sent by FAS to the Institute. The Institute delivered the course curriculum to the students provided by FAS. He said that he participated in open evenings from time to time but had no real participation in promoting the Institute.
He said that he arranged for his class in 2001 to paint the Institute’s helicopter as a practical project in preparation for an open day that was subsequently cancelled. He said that on one occasion he participated in a Nationwide RTE program regarding the Institutes involvement in the World Skills Competition. He said that his involvement in that competition was voluntary and not part of his work in the Institute. He said that he participated on one occasion in that competition.
He said that he kept abreast of developments in his specialist area. He said that a teacher could not deliver his courses if he did not do this.
He said that he participated in the design and development of the FAS syllabus for Vehicle Body Repair. He said that he was asked to become involved in this work by FAS and was remunerated for that work by FAS and not by the Institute.
He said that he acted as an expert and chief examiner for the National Skills Competition. He said that he participated in efforts to secure private sector funding for that competition.
He said that the Lecturer Duties set out in Appendix 2 of the Towers Watson Report that was before the Court is not an accurate description of the work that he performs.
In response to Mr Mallon for the Respondent he said that classes stop for roughly 10 weeks each year between May and September and that he considers this to part of his annual leave. He said that in addition he considers the two weeks at Christmas and a week at Easter during which there are no classes as part of his annual leave also. He said he has no involvement with the Institute during these times. He said that he has roughly 16 class contact hours each week. In addition he attends at meetings that, on average, amounts to an additional two hours per week. He said that he teaches some night courses but these are optional and he gets paid separately for his involvement in these courses.
He said that when commencing new courses he prepares at a ratio of three hours preparation for each hour’s teaching. He said that this occurred roughly twice per academic year. He said that he keeps abreast of changes in technology in his specialist area. He denied that he had downgraded his own job as part of this process. He said that he has not undertaken research on his own initiative other than the work he commenced on the Solvents Directive that came to nothing. He said that he taught phase four and six of the apprentice training program and that as the students were sent to the Institute by FAS he had no role in promoting the Institute amongst that group other than to advise them of further courses of study available in the Institute.
He said that he did not “direct the work of any Tutor/Demonstrators” as set out in the Lecturer Duties. He said the Department did not employ staff in that capacity.
He told Mr Mallon that, having been employed as a College Teacher, he had progressed to Lecturer 1 in accordance with the terms of an Agreement concluded between his Union and the Department of Education.
He told Mr Mallon that he had attended a meeting with Mr Wall, Mr Carroll and Mr Carr and verbally advised Mr Wall of the work he performed for the Institute. He said the Job Description Mr Wall prepared was sent to him for his consideration and that he approved it as an accurate record of the work he performed. He said that he did not see the Complainant’s job description and was not sent a copy of it by Mr Wall. He said that he did not discuss the Complainant’s job description with him. He said that he had been asked by way of a telephone conversation by the Complainant if he would agree to allow himself be used as a comparator for the purposes of this complaint and he agreed to the request. He said Mr Carr subsequently told him what was involved.
He was asked by Mr Mallon to comment on the similarity of wording between his own and the Complainant’s two job-descriptions. He said that that was a matter for Mr Wall not for him. He said that the wording of the Regular Duties section of the Job Description reflected the content of the syllabus. When asked if he would be familiar with the wording of the syllabus he said he would as he had part written it through his involvement with FAS.
When asked if what he did was typical of the work done by the Lecturer 1 Grade, he said that it was typical of those employed in the Trade schools. He said he was not aware of what those in other areas of the Institute did.
Ms M P Guinness B.L. for the Complainant submitted that the work performed by the Complainant and the comparator as set out in the job descriptions and as agreed by the job holders had been professionally evaluated against the criteria set out in the Act. She said that the outcome of that exercise had demonstrated that the Complainant and comparator were not engaged in like work within the meaning of Section 7(3)(a) of the Act but that they were engaged in similar work within the meaning of Section 7(3) (b) of the Act and in work of equal value within the meaning of Section 7(3) ( c ) of the Act and accordingly the Complainant was entitled to succeed.
Respondent’s Case
Mr Declan Allen, Head of Department, Mechanical and Transport Engineering told the Court that HPAL teachers were in the nature of a backup resource the requirement for which could not, in any academic year, be determined in advance. He said that HPAL teachers are required to deliver course content to students. In order to do this they must be capable and competent to do so and this involves a keen knowledge of the subject area and an ability to deliver the course content in an effective manner. He said that, unlike staff employed at Lecturer (Grade 1) level they have no wider involvement in course development or in the development of the Department or the Institution.
He said he regularly met with HPAL lecturers to establish their availability to undertaking teaching duties. He also said that both he and the Complainant lived in Co Kildare and that the venue for the meeting referred to by Mr Quinn was chosen because it was convenient for both of them. He said that the meeting was routine.
He said that this meeting with Mr Quinn took place shortly after the management team of the Department had changed. He said he valued Mr Quinn’s contribution to the Department and was anxious to establish if he was available to take up teaching hours. He said that as a result of the meeting Mr Quinn did return to teach at the Institute.
He said he also wanted to establish if they could resolve the dispute that was being pursued by Mr Quinn. He said he did not seek to pressurise him into withdrawing the complaint. He said that he did not make any promise to provide him with 10 hours teaching if he withdrew the complaint.
In response to Ms Guinness B.L. he said he was not aware of a presentation given by the Human Resources Department in September 2009 that described a blurring of the role and duties of HPAL and Assistant Lecturers.
He said that Mr Quinn had been denied access to a Department meeting in September to which he had not been invited. He said that he was aware that Mr Quinn had attended such meetings before. He said that the decision to exclude him from the meeting was on foot of a recently issued general directive within the Institute.
He said that Mr Quinn’s hours had been reduced because the Department was building a competence in vehicle painting and allocated hours to another person who possessed those skills.
He said that he did not accept that the email Mr Quinn sent to the Human Resources Department following the meeting he attended with himself and Mr Corrigan was entirely accurate.
He rejected the proposition that he put any pressure on Mr Quinn to withdraw his complaint in return for a promise of 10 teaching hours. In answer to a question from the Court he said he was not in a position to make such a promise.
He said that on a regular basis there would be little difference between the role of a Lecutrer (1) and HPAL post. He acknowledged that the job descriptions prepared by Mr Wall were broadly accurate and reflected the work done by the job holders.
He said that participation in the World Skills Competition was part of a larger strategy to showcase the Department and the Institute and to build networking capacity with the industry internationally.
In response to Mr Mallon he said that Mr Quinn was subsequently offered and accepted a HPAL contract for 5 hours whilst he was pursuing his complaint to the Rights Commissioner.
Mr Kevin Empey, a consultant with Towers Watson, an international human resources company told the Court that he had been engaged by the Respondent to “evaluate the size and scope of the PWL and HPAL roles within the Institute. He said that he relied on the contract of employment of each of the roles, aspects of the documents supplied to him by the Institute that included the respective submissions of both sides to the Rights Commissioner and information provided to him by management in response to questions raised by him in the course of his research and analysis.
He outlined the method he used which he said was proprietary in nature and had been used extensively in the public and private sector both in Ireland and across the world.
He said that his analysis led him to conclude that the PWL role is a bigger role overall and has broader accountabilities and organisational impact when compared to the HPAL role. Based on the documentation provided and these findings he said that his view was that the job size of the HPAL role is not equivalent to the role of the PWL.
He said that the evaluation results highlight that some of the 7 job grade factors are equal for both roles whilst other differ. Functional Knowledge, Business Expertise and Problem Solving were scored as factor level 2 for both roles. However Leadership, Nature of Impact, Area of Impact and Interpersonal Skills were scored as higher for the PWL role when compared with the HPAL role. He said the reason for this difference is that the PWL role has a “wider organisational leadership responsibilities in relation to fellow colleagues.”
He said that the “Nature Of The Impact” of both jobs were different as the PWL role had an impact “by influencing decisions through advice, counsel or facilitating services to others in areas of specialisation that the HAPL role does not.
He said that the PWL role has a responsibility for “participating in appropriate activities necessary to the development of their departmental/school and of the institute. These responsibilities are not included in the duties of the HPAL role.
He said that the “Interpersonal Skills” required of the PWL are set out in the Contract of Employment in the following terms: -
“strong communications and diplomacy skills are required to guide, influence and convince others, in particular colleagues in other areas/departments and external customers/agencies. These responsibilities are not included in the duties of the HPAL role.
No comparable skills are required of the HPAL role.
He said that the distinction between job factor level 2 and 3 in this context, is that level 2 relates to the job requiring developed communications skills to exchange complex information (in this case the course material), whereas level 3 relates to the job requiring developed communication & diplomacy skills in order to guide, persuade and influence others both internally and externally. For these reasons the PWL role was scored as “3” under the Interpersonal Skills” factor whereas the HPAL role was scored as a “2” under the same factor.
He said that he has evaluated the PWL and HPAL roles using the Towers Watson CGS methodology and taking into account the specific rule duties and finds that the PWL role is a bigger role overall and has broader accountabilities and organisational impact when compared to the HPAL role. On this basis he found that the HPAL role is not equivalent to the role of the PWL.
In response to questions from Ms M.P. Guinness B.L. he agreed that he had not interviewed the complainant or his chosen comparator. He agreed that he had not examined the work actually performed by the Complainant and the Comparator. He agreed that he had relied on the documentation provided by the Respondent, the Contracts of Employment and the supplementary information he had sought to understand the “colour and flavour” of the roles.
In response to a question from Mr Mallon he said that it would be normal for information to be gathered separately from both the Complainant and the comparator, to prepare a job description based on the information supplied and to have the job description approved by both the job holder and the employer.
Findings of the Court
In coming to its conclusions the Court has considered all of the written and oral submissions made by the parties together with the evidence presented to it in the course of the hearing into the complaint.
The Law
Section 9(1) of the Act provides
Subject to subsections (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.
Section 7(2) of the Act states: -
(2) For the purposes of this Part, an employee is a comparable employee in relation to the employee firstly mentioned in the definition of “part-time employee” in this section ( the “relevant part-time employee”) if-
- (a) the employee and the relevant part-time employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (3) is satisfied in respect of those employees.
- (a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work.
(b) The work performed by on of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be signicicant, and
(c) The work performed by the relevant part-time employee is equal or greater in value to the work performed by the other employee concerned, hving regard to such matters as skill, physical or mental requirements, responsibility and working conditions.
It was common case that the Complainant and his chosen comparator were at the date of the complaint employed by the same employer. What was at issue in this case was whether they were performing the “same work” within the meaning of section 7(3) (a), “work of a similar nature” within the meaning of section 7(3) (b) or “work of equal or greater value” within the meaning of section 7(3) (c).
Separately each of the parties engaged the services of an expert to carry out what was described by the Complainant’s expert “a job evaluation exercise” and as “a job sizing exercise” by the Respondent’s expert.
Unfortunately the two experts did not engage with each other in the design of the exercise or on the methodology used. Both experts came to different conclusions. Both experts gave evidence to the Court regarding the exercise they carried out, their findings and their conclusions.
The Source Documents
The Court first considered the source documents upon which each of the experts conducted their analysis.
Mr Wall, the expert engaged by the Complainant, told the Court that he interviewed both the complainant and the comparator. In cross examination of the complainant it emerged that Mr Wall interviewed the complainant and the comparator in the presence of each other. Counsel for the Respondent challenged this approach and suggested that it gave rise to the possibility that they influenced each other or could have colluded together. He suggested that the comparator had “dumbed down” the work he performed in order to assist the Complainant succeed with his complaint. He pointed to the similarities in wording between the Complainant’s and the comparator’s job description as evidence that supports the view that they had mutually influenced each other. He suggested this was powerful evidence that the process was contaminated.
While Counsel for the Respondent challenged Mr Wall’s methodology he did not put the matter to Mr Wall in the course of his cross examination. Accordingly Mr Wall’s view of the methodology he employed was not before the Court. Mr Empey, the expert witness for the Respondent, did not confirm this view when giving evidence on this point. As noted above he said in evidence that he said that it would be normal for information to be gathered separately from both the Complainant and the comparator, to prepare a job description based on the information supplied and to have the job description approved by both the job holder and the employer. Accordingly the Court finds that neither of the two expert witnesses gave evidence to the Court that challenged the methodology used by Mr Wall.
The Court heard from the Complainant and the comparator that the job descriptions prepared by Mr Wall accurately described the work they performed. This view was confirmed by Mr Allen, Head of Department, in his evidence to the Court. The Court notes that no evidence was introduced to show that the job descriptions amounted to an inaccurate description of the work actually performed by the Complainant and his chosen comparator. The Court accepts the Complainant’s and comparator’s explanation that the similarities between the two job descriptions reflect the similar nature of the work they perform.
Accordingly the Court finds that the job descriptions developed and relied upon by Mr Wall represent an accurate description of the work done by the Complainant and the Comparator, that their accuracy was confirmed by both the job holders and by Mr Allen, a witness for the Respondent, and that they constitute a reliable basis for the conduct of the job evaluation exercise undertaken by Mr Wall..
Mr Kevin Empey, the expert engaged by the Respondent, told the Court that the source document he relied on for his analysis and exercise consisted of the “Contracts of Employment” of both the Complainant and the comparator together with the additional documents provided by Management that included the submissions to the Rights Commissioner and finally the supplementary information provided by Management in response to questions he raised to elicit further details regarding the colour and flavour of the roles under review.
He told the Court that he did not interview the Complainant’s and did not establish or examine the work they actually performed as opposed to the duties they were contracted to perform. Counsel for the Complainant submits that this did not meet the requirements of the Act. She refers the Court to the wording of Section 7(3) (b) and ( c ) of the Act. She submits that both sections refer to the “work performed” by the Complainant and the comparator and not to the duties outlined in the contracts of employment. She submits that the analysis conducted by Mr Empey was of no assistance to the Court in determining the matters before it as it does not address the conditions set out in the Section 7(3) (b) and (c). She submitted that for this reason the Court must ignore this evidence.
The Court notes that the Complainant has conceded that he is not performing the same work as the comparator within the meaning of Section 7(3) (a) of the Act. The Court has examined the wording of Section 7(3) (b) and (c) of the Act. Section 7(3) (b) provides that
- “the work performedby one of the employees concerned is of the same of a similar nature tothat performedby the other and any differences between thework performedor the conditions under whichit is performedby each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant. (emphasis added)
Section 7 (3) ( c ) provides
“thework performedby the relevant pert-time employee is equal or greater in value tothe work performedby the other employee concerned …….(emphasis added)
It is clear from the wording of each of these sub sections that the Court must establish the work performed by the Complainant and the Comparator and the conditions under which it is performed separately and then proceed to compare each with the other to determine if the work performed and where relevant conditions under which it is performed meets the conditions set out in subsections 3(b) and or 3( c) respectively.
The Contract of Employment may be relied upon if the complainant and comparator actually perform the work set out therein. However in this case the comparator expressly told the Court that he did not carry out all of the duties outlined in his contract of employment. Both he and the Complainant told the Court that the job descriptions prepared by Mr Wall were an accurate description of the work they performed and this did not match the work set out in the contract of employment. This position was confirmed by Mr Allen as outlined above.
Accordingly the Court must conclude in this case that a factor analysis based on the duties outlined in the Contract of Employment and other documents that do not establish the work done by the Complainant and the comparator does not meet the requirements of the Act. Therefore the Court has concluded that it cannot rely on the analysis conducted by or the findings of Mr Empey in determining the matters before it.
The Court went on to consider the analysis carried out by Mr Wall.
Counsel for the Respondent did not challenge Mr Wall’s expertise. He did query some of the decisions Mr Wall made in the design of the scheme he used in this exercise. In particular he queried why he had chosen to base the scheme on the Failte Ireland scheme and why he had chosen not to use the schemes used in similar exercises in University College Galway and in University College Maynooth. Mr Wall told the Court that the Failte Ireland scheme had the advantage that it had been accepted by management, staff and the unions as fair and reliable. In addition he told the Court that Failte Ireland carried out a significant level of training for the catering industry and that the scheme was designed with that in mind. He said that the similarities between the nature of some of the work being assessed in Failte Ireland and that being assessed in this case were such as to render the scheme suitable for use in this case also. He also told the Court that the main difference between the chosen scheme and those used in University College Galway and in University College Maynooth were to the disadvantage of the Complainant and not to his benefit.
The Court considered the scheme used by Mr Wall against the conditions set out in Sections 7(3) (a), 7 (3) (b) and 7 (3) (c) of the Act. The Court notes that the scheme follows precisely the conditions set out in each of these subsections of the Act and assesses the work done by both the Complainant and the Comparator under each of them in turn in considerable detail.
Having considered the matter the Court finds that the scheme used by Mr Wall was appropriate and reliable and that it addressed the conditions set out in Section 7 of the Act. The Court notes that the Mr Wall found that the Complainant and the Comparator were not performing the “same work” within the meaning of Section 7(3)(a) of the Act. The Court notes that Mr Wall found that the work performed by the Complainant and the comparator met the conditions set out in subsections 7(3) (b) and 7 (3) (c ) of the Act respectively.
Counsel for the Respondent submitted that Mr Wall had failed to give adequate weight to the comparator’s involvement in the National and or World Skills Competitions; to his research on the EU Solvent’s Directive, to the staff training he provided within the Department and to his involvement in the promotion of the Institute.
Mr Wall told the Court that the comparator’s involvement in the World Skills Competition had happened once only in the course of his employment, was not remunerated by the Respondent and amounted to a voluntary involvement that was not a condition of his employment or a contracted duty. He said that it was of small importance in relation to the work as a whole and occurred with such irregularity as not to be significant. He told the Court that he came to a similar conclusion regarding the comparator’s involvement in the National Skills Competition. He noted that the Complainant also had been involved in that competition though not as a chief examiner. He told the Court that he confined his analysis to the work the Complainant and Comparator undertook as part of their respective jobs and for which each was paid by the Respondent.
He told the Court that the research the Comparator undertook was infrequent and of small importance in relation to the work as a whole. He said that he understood that it was never completed and came to nothing. He said that the Complainant had also carried out some research relating to a proposed application to the European Union for phase 111 funding.
The Comparator told the Court that he had never written an academic paper, never submitted one for publication, never had any research published and never delivered a lecture detailing the results of his research to professional body or group.
Mr Wall told the Court that the research conducted by the comparator on the Solvent’s Directive was irregular and of small importance in relation to the work as a whole.
He said that the both the Complainant and the comparator had given presentations to other Departmental staff members. The comparator told the Court that he had done this on no more than three occasions in the course of his employment. Mr Wall told the Court that he considered this an irregular activity and to be of small importance relative to the work as a whole.
The Comparator told the Court that he was not involved in the promotion of the Institute. He said that he taught a course the syllabus for which was prepared by FAS, to students that were sent to the Institute by FAS. He said he had no role in recruiting students into the college. He said he had a peripheral involvement in notifying his students of educational opportunities within the Institute. He also said he had a peripheral involvement in “open nights” organised by the College.
The Court finds the evidence of the comparator and the reasons put forward by Mr Wall for the decisions he made convincing in respect of these matters.
The Court accepts Mr Wall’s conclusions that the Complainant and comparator performed “work of a similar nature” in accordance with Section 7(3) (b) of the Act. The Court also accepts Mr Wall’s conclusions that the Complainant and comparator were performing work of equal or greater value in accordance with Section 7 (3) (c ) of the Act.
Section 9(1) of the Act provides that a part time employee shall not, in respect of his or her conditions of employment be treated in a less favourable manner than a comparable full time employee.
However Section 9(2) of the Act allows for such less favourable treatment where it can be justified on objective grounds.
In this case the Respondent did not raise any defence under this section of the Act.
It is common case that the conditions of employment of the Complainant are less favourable than those of the comparator.
Section 16(2) of the Act sets out the remedies available to the Rights Commissioner. Section 17 (1) of the Act requires this Court to make a determination in writing in relation to an appeal “affirming, varying or setting aside the decision” of the Rights Commissioner.
Accordingly the Court determines that the complaint is well founded in that the Complainant was treated in a less favourable manner in respect of his conditions of employment than a comparable permanent employee contrary to the provisions of Section 9(1) of the Act.
Remedy
The Complainant told the Court that he was employed for three hours per week at a rate of €66.86 per hour.
Section 9(4) of the provides
Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a part-time employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable full-time employee.”
The Complainant in this case works less than 20% of the normal hours of work of a comparable full-time employee. Accordingly he comes within the provisions of Section 9(4) of the act.
Section 16(1) of the Act limits the level of compensation the Court may award to an amount that is “just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee’s employment.”
The Court considers that an award of €14,000 compensation is just and equitable having regard to all the circumstances.
Determination
The Court finds the complaint is well founded and awards the Complainant €14,000 compensation for breach of his statutory entitlements under Section 9 of the Act.
The Rights Commissioner’s decision is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
2nd October, 2012______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.