FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : GALWAY/MAYO INSTITUTE OF TECHNOLOGY - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Recommendation No: r-126423-ir-12/EOS.
BACKGROUND:
2. This case is an appeal by the Union of Rights Commissioner's Recommendation No: r-126423-ir-12/EOS. The issues concern claims by the worker that she was not paid for carrying out Needs Assessment Reports contrary to custom and practice in her employment. The worker is also seeking that she be regularised in her post with Galway Mayo Institute of Technology.
The Union's position is that the worker was entitled to be paid for the15 Needs Assessment Reports as these had always been paid for separately from her normal hourly rate of pay while she was on a temporary part time contract. The Union contends that when she became entitled to a contract of indefinite duration (CID) management ceased the additional payments on the basis that the Assessments would be done during normal working hours.
Management contends that the worker could not be paid additional payments for the Needs Assessment Reports once she changed to a CID as there was a significant drop in the number of students which meant that the Assessments could easily have been done during normal working hours.
The matter was referred to a Rights Commissioner for investigation. A Recommendation issued on the 6th February 2013 and awarded the worker €1,000 compensation on the basis that Management has not consulted or notified the worker of the revised payments arrangements.
On the 19th March 2013, the Union appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 6th February 2014.
UNION'S ARGUMENTS:
3 1Needs Assessments Payments:The worker was paid separately for the Needs Assessments Reports while she was employed on a temporary part time contract. There was no information provided to the worker that this would cease when her status in the organisation changed. Management should have consulted with her on the changes to the methods of payment for the Assessments and informed her of the changes prior to her receiving a CID.
2Regularisation:The worker is currently on a CID with the organisation but is not regularised in an approved grade. The Union is seeking that she be regularised in line with other employees of the organisation engaged in comparable work.
MANAGEMENT'S ARGUMENTS:
4 1Needs Assessments Payments:When the worker's status changed from temporary/part-timeto that of a CID she was contracted to do specific duties within an agreed number of hours per week. A subsequent reduction in the number of students resulted in the worker being more than able to complete the assessments during her normal working hours. In those circumstances Management cannot justify making the additional payments for the assessments.
2Regularisation:This issue has not been formally discussed as yet. Management contends that local level discussions should take place prior to the issue being recommended on by the Labour Court.
DECISION:
This is an appeal by the Union on behalf of an employee against a Rights Commissioner’s Recommendation in relation to her claims for (i) payment for 15 Needs Assessment Reports carried out between October 2011 and June 2012 and (ii) regularisation of her post. The Rights Commissioner found against her claim for payment for completion of the Needs Assessment Reports, however, she recommended that the Appellant should be paid a sum of €1,000 compensation for the Institute’s failure to consult and notify her of revised arrangements. The Rights Commissioner made no recommendation on the claim for the regularisation of her post as she accepted the Institute’s position that this was prematurely referred to a third party.
- (i)Payment for 15 Needs Assessment Reports claim
The Appellant sought payment for the Needs Assessment Reports which she alleges she is entitled to as prior to her employment status changing from a temporary part-time status to a contract of indefinite duration she was paid an hourly rate of pay plus a lump sum payment for each Needs Assessment Report completed. The Appellant submitted that at no point was it made clear to her that she would no longer be paid for Needs Assessment Report in addition to her basic salary when she was furnished with a contact of indefinite duration. She claimed that she was due €6,000 in outstanding payments.
Management stated that the Appellant was initially employed on a part-time basis as a Learning Support Tutor, her employment was funded by monies provided by the Higher Education Authority to support students with a disability and she was paid an hourly rate of pay together with an additional payment to carry out the Needs Assessment Reports. When she was placed on a contract of indefinite duration from October 2010 she was placed on a contract to cover an estimated weekly student contact of 18 hours with a 27-hour working week. However, the number of students requiring the service decreased substantially and when the Appellant sought payments for the completed Reports her application was refused as Management contended that the work was carried out within her normal working hours and it was not the normal practice of the Institute to pay such monies where the work was carried out as part of a staff member’s work.
Having considered the submissions made by both parties the Court is of the view that apart from the matters in contention there was regular day-to-day communication between Management and the Appellant. When her contract was being converted from a temporary contract to a contract of indefinite duration, a balance was struck on the hours she would be required to work and this was based on the best estimate of the number of students requiring the service. This exercise was conducted between the Institute and the Appellant’s Union representative. However, there is no evidence to show that she was formally informed that she would no longer be paid separately for the Needs Assessment Reports. On 5thOctober 2011 the Appellant emailed management to enquire about this issue, at which time she has completed one Needs Assessment Report, however, there is no evidence to show that she was consulted on the changed arrangements. She proceeded to complete the remaining 14 Needs Assessment Reports and submitted her application for payment of same.
In all the circumstances the Court concurs with the Rights Commissioner’s findings, however, the Court is of the view that due to the lack of formal communication on the matter she should be compensated by the payment of a lump sum of €2,000 in full and final settlement of the claim for payment for the Needs Assessment Reports.
Therefore the Court varies the Rights Commissioner’s Recommendation accordingly.
- (ii)Regularisation of her post
The Union on behalf of the Appellant submitted that it sought to have the Appellant’s position with the Institute regularised by providing her with a contract, remuneration and general terms and conditions of employment in line with other members of staff doing similar work.
Management submitted that there had been no discussions with the Appellant’s Union on this issue since the drop in student numbers. It recognised that the Appellant had taken on additional duties, however, it submitted that in the absence of local discussions the matter was prematurely before the Court.
The Court is of the view that the position outlined by Management is not unreasonable and accordingly recommends that this issue should be the subject of engagement and discussions between the parties with a view to resolving all matters relating to her employment terms. The Court recommends that this process should be completed by no later than the end of April 2014.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
24th February 2014______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.