Complainant

Respondent

Anonymised Parties

A Lecturer

A Third Level Educational Institution

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00012034-001

20/06/2017

The Respondent is a third level educational institution. The Complainant has been employed by the Respondent on a full-time basis as a Software Architect since 1 August, 2000. The Complainant has also undertaken lecturing duties for the Respondent for 1.5 hours per week during his period of employment. The Complainant contends that both of these positions are contractually separate and distinct employments with the Respondent. The Complainant claims that he was unfairly dismissed from his lecturing position on 9 January, 2017 after a period of seventeen year’s unbroken service in this role.

The Respondent does not dispute the Complainant’s contention that he held two distinct and separate roles within the institute during his period of employment. The Respondent contends that it was necessary to re-assign the lecturing hours the Complainant had previously taught to another lecturer for the academic year 2016/17 in order to comply with the requirements of a Department of Education circular. The Respondent claims that the Complainant refused to accept an offer of alternative lecturing hours for this academic year. The Respondent denies that the Complainant was dismissed within the meaning of the Unfair Dismissals Act and submits that he has, at all material times, continued to work in his substantive post.

The Complainant claims that he maintained two distinctly and contractually separate and continuous employments with the Respondent from October, 2000 until 9 January, 2017. The first position is that of a Software Architect in respect of which the Complainant was provided with a Contract of Indefinite duration in 2012 which was backdated to 2004. The Complainant is still employed in this position bythe Respondent.

The Complainant’s secondary position was that of a part-time lecturer for 1.5 hours per week. The Complainant was not provided with a written contract in relation to the position of lecturer. However, he held this position for an unbroken period of approx. seventeen years until 9 January, 2017 when his employment in this position was terminated. The Complainant’s written contract of employment for his primary position as a Software Architect does not make any provision for, or reference to, his role as a lecturer.

The Complainant submits that the Head of Department (to which his lecturing role was associated) sent an e-mail on 26 January, 2016 seeking applications from all current staff for their existing roles, on the instruction that “the Institutes Finance/HR required some formal HR recruitment process is carried out with respect to part-time lecturing hours”. In the same e-mail, it was stated that “It is important to keep in mind that absolutely no negative implication is intended viz any of our current colleagues teaching in these areas”. The Complainant abided by the request, submitted his details, and had his application acknowledged by the HR Department and heard nothing further from the Institute. The Complainant contends that lecturers such as him would not have been asked to apply for these positions if these lecturing posts were merely some unwritten addendum to their non-academic contracts of employment.

The Complainant submits that he had been offered his full quota of 1.5 hours lecturing per week in the subjects of Mathematics and Statistics for both semesters of the academic year 2016/17. However, the Complainant was subsequently informed by a colleague, who was not a member of management, that his full quota of lecturing hours was being taken away from him. He contends that this was a clear violation of process that left him quite distressed and embarrassed and also demonstrates that he was the last in the chain of people to know this fact when he should have been consulted in advance by HR about the matter.

The Complainant claims that the nature of his lecturing position was confirmed by the Respondent’s HR Department after he had disputed the decision to terminate this position with the Head of School, Dr. W. In an e-mail received from Dr. W, it was stated “I have checked with colleagues and it appears that “the Complainant” has a non-academic CID in another unit within “the Institute”. In preparing the timetable for semester 2, an academic within the School who is under hours to their contract is available to teach the module in semester 2 that in the past would have been allocated to “the Complainant” and this lecturer was requested to take these hours.”

The Complainant claims that he unsuccessfully sought to have this matter addressed by the Respondent’s HR Department but it was only after referring a complaint to the WRC that he received contact from the HR Manager proposing a meeting to discuss the matter. The Complainant rejects any suggestion by the Respondent that he did not act in accordance with the internal grievance procedures in relation to this matter having already disputed the matter with the Head of School, and then trying repeatedly to contact the HR Manager directly to discuss his grievance. The Complainant claims that this matter was not a workplace dispute impinging on his day to day duties but rather a termination of his position as a lecturer which he had held for seventeen years.

In cross examination, the Complainant accepts that he was offered 1.5 hours per week to lecture in a different subject following the Respondent’s decision to allocate his normal lecturing hours (in Mathematics and Statistics) to another lecturer. However, the Complainant contends that this was not a suitable offer as he was not sufficiently qualified to undertake the alternative subjects which were offered to him.

In summary, the Complainant claims that he was unfairly dismissed by the Respondent from his part-time position as a lecturer within the meaning of the Unfair Dismissals Acts.  

The Complainant has been employed on a full-time basis with the Respondent as a Software Architect since 1 August, 2000. He was provided with a Contract of Indefinite Duration in 2012 in relation to this position which was backdated to 2004.

The Respondent submitted that since the commencement of his employment in the year 2000, the Complainant has also provided services as a lecturer for 1.5 hours a week for which he was paid €378.24 per month. These hours were never guaranteed and were always assigned on the basis of demand/take up on the courses made available to him. From year to year there was never any guarantee the Complainant would be assigned teaching hours. This was the position also for the academic year 2016/17.

The Respondent contends that the Complainant’s position appears to be that he was entitled to the first-year Mathematics and Statistics teaching hours. In 2016, the Department of Education issued a circular following the publication of a report known as “The Cush Report”. In this regard, the Respondent relies on the provisions of Circular 0041/2016 which states:

“Awarding of additional hours

In advance of advertising available hours in a particular course, an Institute of Technology should carry out a review to ascertain whether there are existing qualified lecturers on CIDs or pro-rate fixed-term contracts for less than full hours who have the necessary qualifications to teach the course and who could benefit by the augmentation of the existing contract. If this is the case extra hours should be offered first to such lecturers before being advertised generally”.

The Respondent submitted that the provisions of this Circular provide that available hours should be, in the first instance, offered to lecturers on CIDs, who have less than full hours. Given the significant financial difficulties experienced by the Respondent, a decision was made to ensure that lecturers who are paid for full-time hours are given full time work to do. The hours the Complainant had previously taught in the subjects of Mathematics and Statistics were therefore reassigned to another member of staff who was on an under-utilised CID. This in no way impacted on the Complainant’s full-time post, and he was offered alternative hours to teach a different subject for 1.5 hours per week which he subsequently declined to accept.

The Respondent submitted that the Complainant did not have any contractual right that fixed him to lecturing in the specific subjects of Mathematics and Statistics. Timetables are not static and the Respondent must take into account the developing law and entitlements of other staff who were awarded CID’s. It was necessary to reassign the subjects which had previously been assigned to the Complainant for operational purposes and the Complainant was provided with a reasonable offer to lecture 1.5 hours in another subject to first year IT Applications students. The Complainant had the normal allocation of lecturing hours available to him for the second semester of the academic year 2016/17 which he refused.

The Respondent submitted that the Complainant, at all material times, continues in his substantive post, which he is currently on secondment from. The Respondent denies that the Complainant was dismissed from his lecturing position and contends that he terminated the arrangement which had been in place to carry out lecturing duties of his own volition by refusing to accept a reasonable offer to lecture for 1.5 hours during the second semester of the academic year 2016/17. The Respondent denies that the Complainant was dismissed within the meaning of Section 1 of the Unfair Dismissals Acts.

The Relevant Law

Section 1 of the Unfair Dismissals Act 1997 provides that:

"dismissal", in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

The fact of dismissal was in dispute between the parties. Therefore, the first issue which I must consider is whether or not the Complainant was actually dismissed from his employment within the meaning of Section 1 of the Acts.

The Complainant contends that he held two contractually separate and distinct positions with the Respondent from the commencement of his employment in October, 2000 until 9 January, 2017. The first position being a full-time as a Software Architect in respect of which he was employed on a Contract of Indefinite Duration and the second position being that of a part-time lecturer working 1.5 hours per week. The Complainant claims that he was unfairly dismissed from his lecturing position on 9 January, 2017 after a period of seventeen year’s unbroken service in this role.

The Respondent does not dispute the Complainant’s contention that he has held two distinct and separate roles within the institute for the last seventeen years. The Respondent contends that it was necessary to reassign the lecturing hours the Complainant had previously taught to another lecturer for the second semester of the academic year 2016/17 in order to comply with the requirements of a Department of Education Circular. The Respondent denies that the Complainant was dismissed from his position as a lecturer and contends that he terminated the arrangement of his own volition by refusing to accept a reasonable offer to lecture for 1.5 hours in an alternative subject during the academic year 2016/17.

Having regard to the evidence adduced, I am satisfied that the following facts have been established in relation to the matter:

·         The Complainant was initially employed by the Respondent as a Software Architect on 1 August, 2000. He was provided with a Contract of Indefinite Duration in 2012 in relation to this position which was backdated to 2004.

·         The Complainant also held the position of lecturer with the Respondent from the year 2000 until 9 January, 2017 (i.e. the end of the first semester in the academic year 2016/17) working for 1.5 hours per week. During this period the Complainant lectured in the subjects of Mathematics and Statistics.

·         The Complainant did not have a written contract of employment in relation to the lecturing position and the assignment of lecturing hours to him was conducted and agreed on a yearly basis subject to the operational requirements of the Respondent. The Complainant’s written contract for his full-time position as a Software Architect does not make and reference or contain any terms in relation to his work as a lecturer.

·         The Complainant was allocated 1.5 hours per week to lecture in the subjects of Mathematics and Statistics for the academic year 2016/17. He was informed in December, 2016 that these hours were being reassigned to another lecturer who was on an under-utilised CID for the duration of the second semester of the academic year 2016/17.

·         The Complainant was offered alternative lecturing duties for 1.5 hours per week to teach first year IT Applications students for the second semester of the academic year 2016/17 but he declined to accept this offer.

·         The Complainant’s employment with the Respondent as a lecturer terminated with effect from 9 January, 2017. However, the Complainant continues to be employed by the Respondent in the full-time position as a Software Architect, albeit that he is currently on secondment from this role.

It is common case that no contract of employment existed between the parties in relation the Complainant’s position as a lecturer. However, I note that the Respondent did not dispute the Complainant’s contention that this was a totally separate and distinct position from his full-time role as a Software Architect. It is clear that the Complainant had been carrying out the role as a lecturer on a continuous basis from the year 2000 until January, 2017 for 1.5 hours per week. In the circumstances, I find that the Complainant was employed by the Respondent on a contract of service to carry out the duties of a lecturer for 1.5 hours per week for the duration of this period.

It was not in dispute that the Complainant’s employment as a lecturer terminated on 7 January, 2017 following the reassignment of the subjects which had been allocated to him for the academic year 2016/17, namely Mathematica and Statistics, to another lecturer who was on an under-utilised CID. I accept the Respondent’s evidence that the reason for the reassignment of the subjects to another lecturer arose purely because of the operational requirements of the organisation which became necessary to comply with the requirements of a Department of Education Circular.

I am satisfied that the Complainant was offered alternative lecturing duties for 1.5 hours per week to teach IT Applications students for the second semester of the academic year 2016/17 but he declined to accept this offer. The Complainant argued that the alternative lecturing duties which were offered at the material time in question did not fall within his specific area of expertise and therefore did not constitute a suitable offer. The Respondent disputes this contention and claims that the alternative offer to lecture first year IT Applications students was more suited to the Complainant’s professional qualifications.

Whilst I accept that there was an employment relationship between the parties in relation to the role which the Complainant undertook as a lecturer, I cannot accept that there was any express or implied obligation on the Respondent to provide him with lecturing duties in the same subjects on an ongoing and indefinite basis. In the circumstances, I find that it was unreasonable for the Complainant to refuse the offer of alternative lecturing duties especially in light of the fact that there would not have been any reduction or diminution in his terms and conditions of employment including the number of hours or pay that he had enjoyed as a lecturer theretofore. I find that the Complainant terminated his employment with the Respondent as a lecturer of his own volition after he unreasonably refused to accept an offer of alternative lecturing duties during the academic year 2016/17. Accordingly, I cannot accept that the sequence of events as described constitute a dismissal of the Complainant by the Respondent.

I have also considered in the alternative whether the events as described could be interpreted as the constructive dismissal of the Complainant. Having regard to the evidence adduced, I cannot accept that the conduct of the Respondent when the issue arose about the reassignment of lecturing duties could be regarded as being such as to leave the Complainant with no alternative to the termination of his employment. I accept that the Respondent could have been more pro-active in terms of engaging in a more detailed consultation process with the Complainant in relation to this matter at the material time in question. However, I am not satisfied that the Respondent’s conduct was so unreasonable or was such that he had no option but to resign his position or that it was such as to show that it no longer intended to be bound by one or more of the essential terms of the contract.

It is well settled case law that there is an onus on an employee contending that they have been constructively dismissed to demonstrate that they have made efforts to resolve the matter other than by termination of employment. In particular there is an onus on the employee to utilise and exhaust all available procedures to address the issue with the employer. Whilst, I note that the Complainant sent a number of e-mails to the HR Manager in relation to the matter, it is clear that he did not seek to initiate a formal grievance or complaint under the Respondent’s internal grievance procedures in relation to the matter.

Having regard to the foregoing, I find that the termination of the Complainant’s employment did not occur as a result of a dismissal and accordingly, I find that the complaint under the Unfair Dismissals Acts, fails.

I find that the termination of the Complainant’s employment did not occur as a result of a dismissal and accordingly, I find that the complaint under the Unfair Dismissals Acts, fails.

Unfair Dismissals Acts – Dismissal in Dispute – Complainant resigned - Complaint fails