ADJ-00002404

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002404

Complaint(s)/Dispute(s) for Resolution:  

Date of Adjudication Hearing: 13/02/2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, Section 8(1B) of the Unfair Dismissals Act, 1977, and Section 11 of the Minimum Notice & Terms of Employment Act, 1973, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Attendance at Hearing: 

Background:

The Complainant was employed as a part time lecturer at the Institute’s Life Long Learning Department. She commenced employment on 30^th September 2004 on a fixed term contract for one year. Her contract was renewed on a yearly basis until September 2015 when the Complainant maintained that she was unfairly dismissed in December 2015 as she had not been provided lecturing hours for the 2015/16 semester. 

The Complainant’s initial contract was for 7.5 hours per week for a total of 24 weeks over two semesters. Her rate of pay was €63.04 per hour. 

CA-00003257-002 Complaint Regarding Failure to Provide Minimum Notice of   Termination of Employment

In addition to the complaint of Unfair Dismissal, the Complainant maintained that she did not receive any notice of her termination of employment, nor any notice payment. She argued that as she had worked with the Respondent for over 13 years she had a reasonable expectation of continuance of employment, however she received no lecturing hours for the 2015/16 semester and was not provided with any notice period which she argued was contrary to the Minimum Notice & Terms of Employment Act, 1973. 

Respondent’s Submission and Presentation:

CA-00003257-001- Response to Complaint of Unfair Dismissal

The Respondent maintained that the Complainant was employed in 2003 on a part time basis to provide lecturing hours during the evening to support what was then a programme delivered on behalf of another institute.

The Respondent contended that due to falling numbers on the programme the programme was discontinued in September 2015 and as a consequence there were no lecturing hours for the Complainant at that time. At the time the Respondent explained to the Complainant that should hours become available the following year it would re-engage her.

The Respondent acknowledged that the Complainant, by virtue that she had been lecturing on renewed contracts since 2003, was in fact protected under the Protection of Employees (Fixed Term Work) Act 2003. As such it acknowledged that the Complainant held a contract of indefinite duration from 2007. The Respondent further advised that it was progressing negotiations with the Department of Education and the Trade Union regarding evening lecturers but that arrangements to facilitate contract of indefinite duration for evening lecturers had yet to be agreed.

The Respondent acknowledged that the Head of the Life Long Learning School made the decision to terminate the contract on the basis that no work was available. Since that decision, and having received a formal complaint, the Respondent advised that it had recently offered the Complainant lecturing hours but she had not accepted these hours.

The respondent provided a record of the hours of lecturing provided by the Complainant, and advised that the Complainant lectured the following hours since 2012/13:

• 2012/13: average 6 hours per week totalling 161.5 hours overall

• 2013/14: average 6 hours per week totalling 119 hours overall

• 2014/15: average 1.5 hours per week plus 24 hour daytime lecturing totalling 60 hours.

The Respondent also advised that as the matter was submitted to the WRC for Adjudication it felt it could not address the complaint informally and at a local level.

CA-00003257-002 Response to Complaint Regarding Failure to Provide Minimum Notice of Termination of Employment

The Respondent acknowledged that it did not provide the Complainant with the minimum notice period for the termination of her employment, albeit it argued that it had not terminated the employment but the Complainant left as there were no hours available for her, and where she did not raise a grievance under the Institute’s procedures.

Complainant’s Submission and Presentation: 

CA-00003257-001- Complaint Regarding Unfair Dismissal

The Complainant maintained that she had worked in the Respondent’s Life Long Learning Centre lecturing in the evening times, continuously since 2003. She advised that she was employed every semester for approximately 9 hours per week until September 2015 for, but this could vary. As she had not a break in service the Complainant contended that in accordance with the Respondent’s procedures, which were subject to a circular letter, she was entitled to a contract of indefinite duration from 2007.

The Complainant advised that she received an email from the head of her department in July 2014 relating to a summer programme. In this email the Complainant contended that she was asked to collect €50 for each student and that this would act as payment for her work. The Complainant was not happy to do this and requested that she be paid properly through payroll for the lecturing. The Complaint subsequently raised her concerns regarding this practice to an external third party whom she alleged spoke to the President of the Institute about the practice. (The Respondent in cross examination denied any knowledge of this practice and maintained that the first it heard of the alleged practice of the Complainant being asked to collect money directly off students was at the hearing).

The Complainant also contended that during the following semester she was approached by two students who advised her that the Respondent was not running their course the following year due to insufficient numbers and that the students were asked to contact her regarding paying her directly to provide the lectures. The Complainant understood that other lecturers had engaged in this practice but she was not willing to support it. The Complainant maintained that the following year (2015/16) she did not receive any lecturing hours for the first time since she commenced her lecturing some thirteen years earlier.

The Complainant maintained that in September 2015 she took part in the Open Evening as usual however she was not scheduled for any classes. She maintained that she was not notified of this, nor was she given any notice that her services would no longer be required. The Complainant further argued that subsequently a colleague who was on a career break from the Institute was offered lecturing hours for which she would normally have lectured. The Complainant therefore argued that she was not provided any hours despite hours being available to lecture. Whilst she acknowledged that the lecturing hours were based on demand, she had however lectured on daytime course during her period of employment, would have lectured on other programmes, and that she was available for research work. As she was on a contract of indefinite duration she maintained the Institute was obliged to provide her with work, a zero hours contract (as they indicated hours may become available during the year), or make her redundant.  

The Complainant advised that she sent an email to the Respondent in March 2016 seeking a resolution of the matter and where she maintains that the Respondent advised it would look into it but as the mater was not addressed by the Respondent. The Complainant therefore submitted her complaint of Unfair Dismissal to the WRC.

The Complainant maintained that she was unfairly dismissed and that the only rationale for this was what she believed was her reporting of the alleged practice of cash for lecturing. She maintained that she received no redundancy, inferring that if there was insufficient work she was entitled to receive redundancy as she was on a contract of indefinite duration. On that basis she argued that she was unfairly dismissed.

The Complainant was seeking reinstatement with regard to her dismissal. She advised that she had found alternative work in another third level educational establishment but with only 40% of her original lecturing hours, and this work was in Dublin.  

Findings:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00003257-001- Finding Regarding Unfair Dismissal

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I am satisfied that the Complainant was continually employed by the Respondent from 2003 as a part time Assistant Lecturer. In 2007 she was entitled to be provided with a contract of indefinite duration for an average 8 hours lecturing per week, 24 weeks per year. It is noted the Complainant would also have been employed for daytime lecturing in 2007, 2008, 2012 and 2015.

It is apparent that there was a reduction in the lecturing hours from the academic years 2012/2013 and 2014/15, and where the demand for the primary programme that the Complainant had been lecturing on appeared to have been falling.

Notwithstanding, the Complainant held a contract of indefinite duration and as such the Respondent was either obliged to offer her lecturing hours each academic year, and if the work or similar work was no longer available it was obliged to make the job redundant. Instead the Respondent informed the Complainant there was no work for her for the academic year 2015/16, and effectively dismissed her as it did not provide alternative work and merely suggested the Complainant could reapply for lecturing hours the following year, or if some hours became available she would be offered those hours.

I do not find any evidence to support the Complainant’s contention that the basis for her not been given lecturing hours was due to her raising concerns regarding being asked to take cash directly from students. Nevertheless I do uphold the complaint that she was unfairly dismissed by not being given any hours for the academic year 2015/16, and where it appears some hours were available but were given to another colleague. 

Decision: 

CA-00003257-001- Decision Regarding Unfair Dismissal

The Unfair Dismissals Act provides for a range of remedies that may be awarded to an employee who is unfairly dismissed. The remedies provided for are re-instatement, re-engagement or compensation.  

The Complainant had asked for reinstatement when making her complaint to the WRC, and the Respondent at the hearing indicated that hours had subsequently become available for the Complainant and whilst they had offered her some hours she was not available at that time (as she had taken up alternative employment at another third level establishment - albeit not at the same level of hours lecturing). The Complaint expressed a preference for lecturing at the Respondent’s Institute due to the inconvenience of attending the alternative workplace.

It is clear form the evidence provided that the Respondent failed to adhere to its obligations regarding the protection afforded to the Complainant under her contract of indefinite duration. It is also noted that the Complainant has expressed a desire to continue lecturing at the Respondent’s Institute; and that the Respondent has a desire to expand the area the area that Complainant has lectured in, and had offered the Complaint hours.

Having found that the Complaint was unfairly dismissed I therefore decide that in accordance with  Section 7(1) (a) of the Unfair Dismissals Act that the Complainant be reinstated by the Respondent in the position which she held immediately before her dismissal on the terms and conditions on which she was employed immediately before her dismissal; and that the re-instatement shall be deemed to have commenced on the day of the dismissal i.e. the date in which she was informed that there was no lecturing hours for her for the 2016/16 academic year.

CA-00003257-002 Decision Regarding Failure to Provide Minimum Notice of   Termination of Employment

As I have ordered the reinstatement of the Complainant I deem Section 4 of the Minimum Notice and Terms of Employment Act, 1973 in relation to this complaint no longer applies.

Dated:   08 May 2017