ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003323

Complaints and Dispute for Resolution:

Date of Adjudication Hearing: 23/08/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 ,Section 7 of the Terms of Employment Information Act ,1994 Section 79 of the Employment Equality Act, 1998, Section 13 of the Industrial Relations Act ,1969 and Section 27 of the Organisation of Working Time Act , 1997, following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute , gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute .

Attendance at Hearing:

                                                           A Lecturer V A Third Level College

Complainant’s Submission and Presentation:

CA-00004888-01 Claim under Terms of Employment (Information) Act, 1994

The complainant is a third level lecturer .In 2006, the respondent invited applications for a Lecturer position on a newly commissioned Degree course in Architectural Education. The course was to have input from both Third Level Colleges in the area .The centre for this conjoint approach was located in the City, a number of miles apart from both campuses.

His role was established with working conditions which were unique to the Architectural centre and distinct from the academic calendar procedures and working conditions that existed for lecturing staff on main campus. The centre was governed by a joint Management Board comprised of Managers from both third level colleges.

In 2010, a Memorandum of Co-operation was signed by these Managers and this formalised the relationship between both colleges .The complainant submitted that the staff at the centre had two distinct contracts, this proved problematic when the respondent and the centre began teaching on different dates in semester 2, 2016.

Since 2014, the complainant contended that he had been taken for granted as a member of staff who will work two different working environments and conditions without discussion or agreement. He submitted that he was opposing an attempt by the respondent to recast his working conditions as the same as all lecturers on main campus.

In 2014, the complainant was approached by an instruction from his Head of Department to part relocate from his principal location at the Architectural centre to performing teaching and additional administrative duties on the main campus . This was to result in a 50% commitment to the Architectural Centre and 50% to main campus .He lodged a grievance in response. The grievance was detailed as:

1 Unfair Treatment in academic year 2014-2015

2 Breaches of Health and Safety Legislation.

3 Refusal of Union Representation

4 Significant reductions in conditions and alteration of contract

The complainant submitted that the essence of his case was that the respondent had not informed him of the unique working environment of the Architectural centre, allowing it to be established and now wish to return him to a working environment on main campus without discussion or agreement. He contended that this undermined the Terms of Employment (Information) Act 1994.These changes were not equally applied to his colleagues on main campus.

1 The respondent had not placed an addendum on the employment contract of 2006 which referred to the complainant’s primary place of work or nature of work between 2006-2014.

2 In 2009 the Architectural centre, while in pursuance of accreditation, described the complainants role as 80% Architectural centre and 20% main campus based.

The complainant contended that the respondent had not supplied him with an adequate written description of his primary place of work or nature of the work in order to afford them the opportunity to radically alter his working conditions and place of work without discussion or agreement.

He submitted a copy of the original advertisement and employment contract.

Respondent’s Submission and Presentation:

The respondent disputed the claim. They submitted that the complainant was employed on a standard lecturing contract with standard terms and conditions.

The Head of the Department at the respondent college makes decisions in relation to allocation of teaching hours and associated duties. These are academic decisions based on alignment of availability, skills and experience to the requirement.

The respondent submitted that there had been a period of significant change in the College due to the implementation of national agreements and changes in student demand.

The respondent rebutted the unique “hybrid” status of the Architectural Centre and contended that there were five other such situations at the college. The college required flexibility from the complainant.

On the day of the hearing, the respondent submitted a copy of the complainant’s contract of employment.

The respondent contended that this was a nationally agreed contract for Lecturers in Architecture as approved by the Department of Education and Skills .The sole change to the contract was associated with pay cuts in the public service .

The respondent submitted that the college was a multi sited campus and they relied on the clause 5a of the contract that the complainant should teach:

“Such assigned classes as deemed appropriate by the management of the College “

The respondent claimed that the timing of the academic year was also the prerogative of management. The contract is under the umbrella of the Minister for education and the college has no authority to change the terms.

1. CA-0000488-001 Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints and dispute in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 7 of the Terms of Employment Act (Information) Act, 1994 requires me to make a decision in the case.

I have listened carefully to both submissions on this aspect of the four claims. I have considered the position of the parties as advanced at the hearing.

Section 3 of the Act sets out the obligations of an Employer within a 2 month period from commencement of employment. I have delineated these obligations below.

Written statement of terms of employment.

3. —(1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee’s contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

F5[(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order, ]

F6[(g) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000,

(ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,]

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

An initial careful analysis of both the Act and the contract supports the respondent position that all obligations have been complied with.

In this, I am mindful of the respondent’s observations on the timing of the complainant’s appointment which co-incided with the economic wonder period enjoyed by the country which was followed by the downturn, the impact of which on the Architectural division was detailed at the hearing by Ms D, Head of Department.

However, the complainant is dissatisfied that his base was virtually static at the Architectural centre until 2014 and disturbed without his agreement. He requested a “security clause “in his contract to protect him for the future.

I have considered this submission. The National Agreements Croke Park, Haddington Rd and now Lansdowne road in the Public Service have at their core centre, flexibility and change with specific sectoral agreements for the education sector. These agreements are incorporated in section 5 of the contract on duties:

“These arrangements are subject to collective agreements arrived at from time to time and authorised by the Minister for Education and Science “

These agreements should have been sufficient to guide both parties in their deliberations on a roadmap for change.

The complainant submitted that he had no direction on what was expected from him in either base or job description. I find that the statement of terms of employment is a foundation document. It is up to both parties to build on the everyday operation of a job by discussion, disagreement and hopefully concluding in eventual consensus. It is a two way process .

I find that the statement of terms of employment is insufficiently clear on the parameters of Section 3(1) c of the Act on place of work, and on that aspect alone; I find the complaint to be well founded.

I suggest the following inclusion by way of a minor adjustment provided for under Section 7(2) (b) (ii) of the Act to incorporate the actual reality of a mobility clause.

Location of Lecturer Position:

Initial base is Architectural Centre with a dual site commitment to the (named) third level college.

Due to the constraints on identifying parties under the Workplace Relations Act,2015. I cannot name the parties .

2 CA-0000488-002 Complaint of Discrimination in Conditions of employment

Complainant Submission:

The complainant detailed his complaint in the same format over the four claims to the WRC .He contended that as a member of the respondent staff based in the Architectural centre he had been treated unfairly and not in keeping with other members of his department on main campus. He detailed the most recent date of discrimination as 26 May 2016.

The complainant contended that he had been refused union representation when he sought to oppose his partial reassignment to the main campus in 2014. He contended that the proposed changes on main campus at the respondent college were not known to the Architectural centre until late June 2014 and that these changes were not merely “day to day “timetabling matters.

“ I was refused the same representation that would be afforded to other members of staff based on a false justification .This is not in keeping with established industrial relations procedures and penalises me as a member of staff .”

He submitted that the remainder of staff had negotiated their own hours with the Head of Department and he was not afforded that facility. He believed that his career was diverted by the consequences of being assigned two different roles in the respondent employment. He believed that he had been victimised for defending his position .He was unable to get a colleague to accompany him at a meeting with only one days notice. He submitted details of communication between his Solicitor and the college. He also submitted copies of email correspondence which referred to correspondence between him and his Head of   Department from 2014

The complainant requested that his claim be investigated in respect of breaches of Equality Legislation encompassing Indirect Discrimination, Direct Discrimination and Victimisation.

Respondent Submission and Presentation

The respondent disputed the claim and asked for the claim to be dismissed. In the respondent’s submission and during the course of the hearing, the respondent submitted that the complainant had not cited one of the nine grounds to ground a complaint for discrimination, nor had he named a comparator for the purposes of his claim.

The respondent detailed the background to the requests made to the complainant to support teaching on the main campus during 2014.

The Department had evolved from one of Construction in 2008. All scheduling of classes took place on the respondent main campus .The respondent incorporated the increased two hours of working time under the Croke Park Agreement into this schedule.

The composition of students changed in 2014 and there was a further teaching requirement on Architectural technology as a subject. In addition, preparation was underway for two accreditation processes. Proposals were prepared to move to a 50:50 Teaching: Administration component during the spring semester. The respondent submitted a series of emails between the Head of Department and the staff referring to the proposed changes and inviting engagement.

The Ms D Head of Department detailed the breakdown of scheduling which involved the complainant over the academic years in percentage terms.

2014 50:50

2015 61:39

2016 61:39

CA-0000488-02               Decision

The issue for me now is, whether or not, the respondent discriminated against the complainant?

The Legislation here refers to the Employment Equality Acts 1998-2011.

Discrimination is defined in the Acts in Section 6. The nine grounds for dismissal are set out in Section 6(2).

Discrimination shall be taken to occur where

1. “…. A person is treated less favourably than another person is, has been or would be treated in a comparable situation on the grounds specified in subsection (2)”

    

Section 8(1) of the Acts provides that prohibition extends to conditions of employment.

Section 8(4) provides that:

“A person who is an employer shall not in relation to employees or employment

1. have rules or instructions which would result in discrimination against an employee …….in relation to any matters specified in 8(1)(b)-(e) or

2. Otherwise apply or operate a practice which results or would be likely to result in any such discrimination.

Section 8 (4) (a) (b) of the Act, provides that an employer shall not have rules or instructions which “would result in discrimination” or otherwise “result or be likely result in any such discrimination “in relation to conditions of employment.

Section 74(2) of the Acts defines victimisation as follows: -

“(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

This requires the complainant to have engaged in a protected Act . I did not identify any submission on a protected action taken by the complainant under the Equality Acts.

The Burden of proof rests with the complainant as stated in the Labour Court Case Melbury Developments Limited and ValPeters [2010] 21 ELR 64

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

It is clear to me that the complainant has held and continues to hold a very strong, genuine belief that that he has not been treated fairly by the respondent. Under Employment Equality legislation, he is required to demonstrate a “difference in treatment “rather than an unfair treatment. Darguisz V Lough Corrib Engineering ltd, DEC –E 2009-038. He is also required, for the purposes of the case to cite a ground on which he alleged discrimination occurred. In addition, he is required to identify a comparator. He did not submit these integral components.

However, my attention is drawn to the time frame referred to in the complaint. The complainant cited on the complaint form that the most recent date of discrimination was 26 May 2016. That would suggest that his complaint was in time.

However, his presentation to the hearing referred to incidents from 2014. I have considered the submissions from both parties. Both parties oral and documentary evidence refers to the periods February – August, 2014 when the proposals for partial re-assignment were first made.

Section 77 of the Act sets down a 6 month time limit for claims of redress in respect of discrimination and victimisation.

77(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence

There is provision for a six month extension on this due to reasonable cause. I asked the complainant whether 26 May 2016 had significance to his complaint and it seemed to be linked to the grievance meeting with the respondent on 25 May 2016. No facts were submitted on this.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

 Dismissal of claim.

77A

Section 77A.—(1) Director General of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

(2) (a) Not later than 42 days after the Director General of the Workplace Relations Commission dismisses a claim under this section, the complainant may appeal against the decision to the Labour Court on notice to the Director General of the Workplace Relations Commission specifying the grounds of the appeal.

(b) On the appeal the Labour Court may affirm or quash the decision.

For the reasons outlined, it is my opinion that this complaint is misconceived and I hereby dismiss this claim.

The Claimant

The claimant gave the same background outline as the other complaints and addressed his claim further at the hearing.

Shortly before he lodged his complaint with the WRC, The complainant had received the outcome of his grievance lodged against the respondent in July 2015.The four grievances were not upheld. The claimant was unhappy with this .He contended that his career was being diverted towards Architectural Technology rather than Architecture.

He was aggrieved that efforts extended by him to secure documents to support his case were delayed and needed Freedom of Information Act application. He submitted that he was aggrieved at being refused representation in August 2014. He was particularly concerned for his future career with the respondent and his potential to apply for other positions if his core role in Architecture was diminished.

The Respondent.

The respondent disputed the claim.

The respondent referred to the outcome of the grievance procedure on 25 April 2016, where the claimant’s grievances were not upheld.

At the conclusion of the record of the grievance, the respondent drew attention to their perception of the “crux” of the grievance .They submitted

” that it referred to a disagreement in terms of cognate subject areas and student cohorts to which he is assigned. He asserts that his interests lie elsewhere “

The respondent sought to emphasise that they had not denied the claimant representation in 2014, and that the issue was an exploratory meeting requiring an initial engagement from the Head of Department and the claimant .The claimant’s hours were 11 contact hours in the Architectural centre and 7 on the main campus.

Decision:

Section 13 of The Act requires me to investigate the dispute between the parties

(ii) notify the Court of the recommendation.

I have listened carefully to both parties in this case . I have considered the documents submitted. I am grateful to the respondent for synopsising the sequence of emails directly relating to the genesis of the proposed 50:50 partial relocation. I am also grateful for the clarity detailed by the complainant that he was seeking certainty and a resolution. There is a dispute between the parties

I can appreciate that Academic Colleges are fast paced educational and creative hubs in addition to being workplaces. I am struck by the metamorphosis from the Dept. of Construction to the school of Architecture detailed by the respondent. I have found that the claimant presents with all the hall marks of a remote worker .This results in a mutual challenge for both parties , if there is to be a common understanding going forward around clarification and resolution as advanced by the claimant at the hearing .

From a careful analysis of the allocation of staff to the Architectural centre, I have identified that the majority based at the Architectural hub are staff employed by another third level College. This is bound to be confusing as the governance is also associated with that College without any identifiable tri partite forum, inclusive of the two colleges and the 5 staff from the respondent college. It is easy to understand that the claimant identified with the Architectural hub, this is where he saw his career developing and consolidating .

However , it must be said that from Day 1, he had a teaching commitment at the respondent college His additional “ Croke Park “ hours were assigned to the main campus and this was followed by the events of 2014.

I have detected a delayed consensus within the respondent college prior to the proposals put to the staff on 50:50 Architectural hub and Main campus in 2014. However, the claimant was notified of a proposed change and invited to engage on 1:1 basis. This was a reasonable request. I find that the delay in undertaking these discussions was critical.

I note that the claimant accepts that the other “hub” staff negotiated their hours for the 2014 academic year and he was left out from that process and had a unilateral application of 50:50 imposed, which has now ameliorated .He does not want to face an arbitrary action again.

In trying to understand the respective positions in this case, I am mindful that the back drop was the economic down turn in the building Industry and the .restrictions in management of the Public Service .I accept the parties submissions on these core factors.

I find that the complainant was unsure how to proceed with his wish to appeal the 50:50 decisions. He lodged his grievance in July 2015 and this concluded via a stage 3 process in June 2016. This was far from ideal and complicated by the initial appearance by the Union in November 2015 followed by the complainant’s decision to represent him.

In times of uncertainty, the presence of an experienced advocate and “go between” can be of lasting mutual benefit to the parties. I must, however respect the decision of the claimant in this regard.

In recommending a way forward in this case, with exception of my comments on the over extended time frame allocated to the grievance procedure, I wish to direct my recommendations on the way forward.

1 I recommend that the respondent establishes a communication forum in the shared service of the Architectural hub to address the issues at the heart of this dispute. This forum should take place at least on one occasion per semester and should be aimed at addressing the core issues of:

1 Teaching hours and Teaching location for the claimant

2 Daily Operational issues.

It should be led by the respondent with input from the service leader from the “hub”. It may go some way to streamlining the obvious duplication in the claimant’s role and reducing the perceived isolation of a “remote/contingent “worker.

In the event that agreement cannot be reached to the mutual satisfaction of the parties on the core issues, the grievance procedure should be activated and strict time lines to be adhered to .Thus, providing for Union participation at the appropriate juncture i.e. post exploratory meetings.

2 It may be timely for the claimant to explore the possibility of a voluntary lateral transfer to the employment of the second college involved in the” shared service of the hub” via the provisions of the National Agreements . His position at the respondent could then be backfilled.

3 While there were omissions on both sides of this dispute which resulted in an over extended period of time associated with the activation of the grievance procedure.

I find that the respondent should have adhered to their own policy in that regard. I recommend that the respondent pays the claimant € 1,000.00 for the delay associated with undue extensions of time frames associated with the activation of the grievance procedure. It may also be beneficial to offer an update on the policy to claimant.

4 CA-0000488-004 Organisation of Working Time Act, 1997

The claimant submitted that he was penalised by the respondent for refusing to co-operate with a breach of the Organisation of Working Time Act, 1997. He referred to the academic year of 2014/2015; where he was not permitted sufficient time to have his meal break while attempting to uphold his contact hours on both campuses.

At the hearing, the claimant referred to 24 meal breaks over the academic year which were compromised in this way.

The respondent refuted the claim, stating that none of the matters alleged by the claimant could be said to fall within the concept of penalisation under the legislation and the claim should be dismissed. The respondent submitted that the claim was also outside the statutory time limit of 6 months from the date of contravention.

I have considered the submissions of both parties in relation to this complaint. I am struck by the detail incorporated in both the record of stage 2 of the Grievance Procedure meeting of 19 November 2015 and Stage 3 of Grievance Procedure Meeting of 25 April, 2016.

19 November 2015, Head of Department committed to resolving the issue .This was referred to as a Health and Safety issue.

25 April, 2016. Head of Department became aware of the issue at the end of academic year 2014/2015 as the initial timetabling had not provided for this .The timetable was changed once she was approached on it.

The Organisation of Working Time Act , 1997 provides a clear direction on penalisation of employees

Refusal by an employee to co-operate with employer in breaching Act.

26

6. —(1) An employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful under this [Act or the Activities of Doctors in Training Regulations.

(2) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts, 1977 to 1993, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

This issue was discussed between the parties and the respondent agreed to review the claim in relation to 24 missed lunch breaks following the hearing .

I am constrained by Section 41(6) of the Workplace Relations Act, 2015 on the statutory time limit in relation to this claim.

Section 41

Workplace Relations Act, 2015

1. (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint

Referred to him or her under this section if it has been presented to the Director

General after the expiration of the period of 6 months beginning on the date of the

Contravention to which the complaint relates.

I do not hold the jurisdiction to hear this claim as it is manifestly out of time.

Patsy Doyle, Adjudicator.

Dated: 30^th January 2017