FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : WATERFORD AND WEXFORD ETB - AND - A WORKER (REPRESENTED BY SARAH O'MAHONEY B.L. INSTRUCTED BY P.J. BYRNE & CO SOLICITORS) DIVISION : Chairman: Mr Haugh Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. Compensation and full maternity pay.
BACKGROUND:
2. The case concerns a claim by the Worker for compensation and full maternity pay. She has been employed as a teacher, an adult education tutor and a coordinator teaching English to non-national employees and asylum seekers since 2003. When the Adult Refugee Programme was ceasing she attended a meeting in November 2012 where she was told that her new contracts would include illness benefit and maternity pay. The employer is refusing to pay her maternity pay for her tutor contracts.
On the 25th March 2015, the Worker referred the dispute to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's Recommendation.
A Labour Court hearing took place on the 30th June 2016. The Employer did not attend the hearing.
WORKER'S ARGUMENTS:
3. 1. The Worker is paid for 52 weeks per year which is applied to teachers and not tutors.
2. The Worker accepted reduced hours on the understanding that her new contracts had improved terms and conditions of employment including illness benefit and maternity pay.
3. The Union Official representing the Worker was ill and she was put under pressure to sign the new contracts.
RECOMMENDATION:
Background to the Dispute
Ms Cunningham originally referred the instant dispute to a Rights Commissioner for investigation under section 13 of the Industrial Relations Act 1969. The named Employer objected to the Rights Commissioner’s investigation. Therefore Ms Cunningham referred the dispute to the Court for investigation pursuant to section 20(1) of the Industrial Relations Act 1969 on 25 March 2015. However, her Employer declined to participate in the investigation of the dispute referred under section 20(1).The Court investigated this dispute on the same date that it heard the Worker’s appeal in relation to the very same issues under the Payment of Wages Act 1991.
Ms Cunningham (“the Worker”) is employed as a teacher and tutor by the WWETB (“the Employer”). She was originally employed by a predecessor of the Employer – Waterford VEC – in 2003. Her employment transferred on 1 July 2013 to the Employer on its establishment pursuant to the Education and Training Boards Act 2013.
The Dispute
The Worker’s complaint is that her Employer refused to pay her a salary based on the entirety of her contractual hours for the duration of her period of statutory maternity leave in breach of her contractual entitlements. She is seeking payment of €16,316.04 being the amount she claims is properly payable to her.
The Factual Matrix
The Worker is employed to perform a number of different roles in different locations: at present she works 9 hours (4 + 5) per week as a teacher, 13 hours per week as a tutor and 3 hours per week as an adult education (night time) tutor. Each of these positions is respectively detailed in separate contracts of employment, three of which issued to the Worker on 20 March 2013 and were stated to be in addition to one existing contract for 5 hours’ teaching per week at Waterford College of Further Education. Each of the Worker’s four written contracts is stated to be a contract of indefinite duration.
The aforementioned contracts issued to the Worker in March 2013 were issued as a consequence of discussions between the Employer’s predecessor and the Worker’s Trade Union, the TUI, on 28 November 2012. The principal purpose of that meeting is expressed as follows in the covering letter of 20 March 2013 which accompanied the contracts:
- “In the meeting of 28thNovember 2012 with you and your TUI representatives and CWVEC all sides were anxious to regulate your hours going forward with a consensus to 22 instruction hours per week.”
A.Teacher’s contract for 4 hours per week:
“11. Maternity/Adoptive/Carers/Parental. Force Majeure Leave
Maternity/Adoptive/Carers/Parental. Force Majeure Leave will be granted to the appointee in accordance with the arrangements authorised by the Minister for Education and Skills. The provisions of the Parental Leave Act 1998 and any subsequent Acts replacing or amending that Act will apply to Force Majeure leave.”
B.Adult education tutor’s contract for 13 hours per week:
“PAID LEAVE: The Department of Education & Skills is currently reviewing this matter. You will be notified of any decision once notification is received from the Department of Education & Skills.”
C.Adult education (night time) tutor for 3 hours per week:
“PAID LEAVE: The Department of Education & Skills is currently reviewing this matter. You will be notified of any decision once notification is received from the Department of Education & Skills.”
The Worker’s Submission
The Worker availed herself of a period of statutory maternity leave between 18 August 2014 and 23 February 2015 during which she was paid maternity pay (less statutory maternity benefit) based only on her 9 teaching hours and excluding her 16 tutor hours. The issue of the continuation of salary payment during maternity leave for tutors is the subject of ongoing discussions at national level between the Department and the TUI.
The Worker submits that it was her “clear understanding” that the issue of her entitlement to full pay during statutory maternity leave was addressed at the meeting of 28 November 2012 and that she had been given an assurance that her entire teaching and tutoring hours would form the basis for her continuing salary payment during any such periods of leave that she might avail herself of. She submitted that it was on the basis of this assurance that she signed and returned the contracts that issued to her in March 2013 and with a “legitimate expectation” that that assurance would be honoured. In addition to the foregoing, she submits - by reference to the circumstances of two named tutor colleagues whom she believes received payment of their salary in full during statutory maternity leave – that there is an established custom and practice in place in the Employer which should be considered as implying a term to that effect into her contracts of employment.
Discussion
The Court is of the view that only the Worker’s teaching hours’ contracts are stated to be subject to the arrangements made by the Minister for Education and Skills with respect to payment during statutory maternity leave i.e. they are subject to Circular letter 009/2013. Both the Worker’s tutor hours’ contracts state that the issue of paid leave is under review by the Department of Education & Skills. In short, the latter contracts do not make any provision for the payment of salary during statutory maternity leave, either expressly or by way of incorporation of any relevant Circular.
No evidence was proffered by the Worker in support of her assertion that the issue of her entitlement to continuation of salary payment was addressed and agreed at the meeting of 28 November 2012. There is no reference to this issue having been discussed or agreed in the covering letter of 20 March 2013. The fact that the Worker signed and returned the contracts in the format that they were issued to her raises questions as to the correctness of her recollection of what was discussed at the meeting of November 2012. The Court was not provided with any explanation as to why the Worker signed and returned the contracts without expressly indicating in writing that they did not reflect the agreement she and her Trade Union had entered into if she believed that to be the case. Furthermore, the Court has been apprised of the ongoing discussions at a national level in relation to issue payment of tutors during statutory maternity leave.
Having considered the Worker’s written and oral submissions the Court finds that the claim is not well-founded.
The Court so recommends.
Signed on behalf of the Labour Court
Alan Haugh
CR______________________
11th July, 2016.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran Roche, Court Secretary.