FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : UNIVERSITY COLLEGE DUBLIN (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY IFUT) DIVISION : Chairman: Mr Haugh Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. Appeal of Rights Commissioner's Recommendation R-149882-IR-14/MMG.
BACKGROUND:
2. The case before the Court concerns the Worker's appeal of Rights Commissioner's Recommendation R-149882-IR-14/MMG. The dispute relates specifically to the Worker's claim that she has carried out the role of a full-time lecturer following the retirement of a colleague in 2009 however her salary and grade structure does not reflect this. The Union on behalf of its member contends that the Worker was requested by the University to undertake the duties associated with the role of a full-time lecturer and she has continued to carry them out from that time until the present day. The Worker is therefore seeking to obtain full-time lecturer status to reflect her actual workload and responsibilities. The Employer rejects the Worker's claim, arguing that at no stage was the Worker requested or contractually obliged to take on the role and duties of a full-time lecturer. It is the Employer's position that all appointments are made through an open competition recruitment process. Accordingly it is not in a position to appoint the Worker to a full-time lecturer position in this manner. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 15th February 2016, the Rights Commissioner issued his Recommendation as follows:
"On balance therefore it is my recommendation that the Claimant's referral on this occasion must fail and I uphold the premise of the respondent's case.
As an addendum it may be thought beneficial by both parties in agreement that an independent review of the role be undertaken".
On the 24th March 2016, the Worker appealed the Recommendation of the Rights Commissioner to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 7th July, 2016.
UNION'S ARGUMENTS:
3. 1. The Worker has carried out a full-time lecturer position since 2009 however she was not issued with a contract of employment to reflect this.
2. The Worker is seeking to be recognised as a full-time lecturer with her salary and grading structure amended accordingly.
3. The Union is of the view that an independent third-party review of the Worker's current workload would confirm her position as a full-time lecturer.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer asserts that the Worker was at no stage appointed to or requested to carry out a full-time lecturer role.
2. The Employer maintains that the Worker is not contractually obliged to undertake the duties associated with the full-time lecturer position. The Employer further maintains that the Worker has been remunerated according to the duties she is contracted to carry out.
3. The Employer is not in a position to facilitate an independent third-party review of the Worker's current role.
DECISION:
This an appeal brought by IFUT against a recommendation of a Rights Commissioner (r-149882-ir-14) dated 15 February 2016.
The IFUT member (“the Worker”) on whose behalf this appeal has been referred to the Court is engaged by UCD (“the Respondent”) as an Occasional Lecturer and Senior Tutor in the School of Irish, Celtic Studies, Irish Folklore and Linguistics (“the School”). Her employment is regulated by two contracts of indefinite duration that provide respectively for a minimum of 50 hours per annum as a Senior Tutor and 100 hours per annum as an Occasional Lecturer. Those contracts issued to the Worker on 28 May 2014. The worker has, however, been employed by the Respondent in a variety of roles since August 2007.
The Claim
The worker submits that she is performing the full range of duties associated with the position of University Lecturer, including teaching, research and administration duties. Her written contracts of indefinite duration do not reflect the extent of the work that she actually undertakes on behalf of the Respondent and she is not paid appropriately having regard to the actual contribution she makes to the work of the School. She is seeking to be placed on the Lecturer salary scale. In the alternative, she is seeking a recommendation from the Court that the Respondent commission an independent review of her role and responsibilities.
The Respondent submits that the contractual duties it requires the Worker to undertake comprise essentially of teaching and tutoring duties along with the normal preparatory and administrative tasks that are naturally associated with such duties. She is paid for this work in accordance with the terms of her contracts. She is also entitled to claim and be paid for any additional work she is requested to undertake – such as marking of examinations or additional teaching duties. The Worker is not required by the Respondent to undertake original academic research or publication. Anything she does in this regard she does in a private capacity in order to develop her academic profile. The Complainant is free to apply in the normal way and compete for any Lecturer posts that arise. All academic posts in the Respondent University are filled by open competition.
Recommendation
It seems to the Court that the issue at the core of the instant referral is essentially related to the matters that are the subject of a recent review of fixed-term and part-time employment in the third level education sector chaired by Michael Cush SC, the report from which issued in May 2016 and the recommendations from which the Minister for Education and Skills has undertaken to implement in early course.
The Court does not have a role in directing any third level institution as to who it should appoint to academic positions and cannot accede to this element of the claim before it. Likewise, the Court accepts the Worker’s contractual position – in terms of the duties she is required to undertake and the agreed remuneration for that work – has been clearly set out by the Respondent in its submission. If the Worker undertakes additional e.g. academic research or other academic activities she cannot legitimately expect the Respondent to unilaterally amend her contractual status in return and circumvent its own established recruitment and appointments process on her behalf.
The claim fails and the Rights Commissioner’s recommendation is amended accordingly.
The Court so recommends.
Signed on behalf of the Labour Court
Alan Haugh
8th July 2016______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.