Complainant

Respondent

Anonymised Parties

A Casual Lecturer

A University

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00011635-001

30/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00011635-002

30/05/2017

In the first complaint set out below, the complainant alleges that she was penalised for seeking to exercise her rights under the Protection of Employees (Part-time Work) Act 2001 (“the Part-time Work Act”). The second complaint is that the respondent failed to issue the complainant with a written statement of her terms and conditions of employment.

Background

The complainant worked in the university as a part-time lecturer from 1999 until 2009, when her employment was terminated. In 2013, she returned to lecture on a different programme and she worked on eight days between January and November that year, lecturing for a total of 26 hours.   The lectures were delivered as part of the 2012/2013 and 2013/2014 academic years. The hourly rate for delivering these lectures was €142.50 and the complainant’s earnings from the university in 2013 was €3,780 gross.   In 2014, she corrected essays and was paid €327.99 for this work.

On February 17th 2014, the complainant received an e mail from an associate director at the school where she lectured the previous year. The director referred to the module that the complainant had worked on and said:

“For the past two years, we had been unable to source a faculty member who was available to teach …on the part-time … programme and I was very grateful that you were in a position to take on the module on both occasions. However, for next year, we have been able to source someone internally and I wanted to alert you to this at the earliest opportunity. I would like to thank you most sincerely for all your work on this module over the past two years. I will keep an eye out for any other similar opportunities that might arise on any of our other programmes and will be in touch with you should something similar arise if that’s okay with you?”

On April 28th 2014, the complainant replied to this mail as follows:

“While I completely understand that the provision of contracted hours is dependent on available work and I have no issue with this, as a HR practitioner I would like to request clarity from you regarding the current status of my contract. I would also like a copy of my contract in line with the provisions of the Terms of Employment (Information) Acts 1994 – 2012.”

In response to this e mail, on May 1st, the associate director said that she had spoken to the school’s HR partner and that this person would be happy to discuss the issue of a contract. She provided the phone number of the HR partner for the complainant to contact her.   No evidence was submitted at the hearing which shows that the complainant followed up with the HR partner.

More than two years later, around October 2016, the complainant was working as a self-employed lecturer in another university and she was attempting to sort out her tax affairs. While she had done no work for the respondent since 2013, she was informed by the Revenue Commissioners that a P45 had not been issued. On November 23rd 2016, she sent an e mail to the professor at the school she worked in up to 2009 and to the HR director.   She complained about the fact that, from a PAYE perspective, she was still registered with the respondent and she said that she explained to Revenue that she had not been offered any work since 2013. She said that she asked the respondent to clarify whether “a redundancy or dismissal has occurred” and she asked for the professor’s help to “expedite this matter.” In her e mail, the complainant outlined her next course of action:

“I am left in a position where I am going to lodge a complaint to the WRC in December, which I would rather not do, but it seems that this will have to escalate if it is to be resolved.”

On December 1st, the complainant received a response from a member of the HR team, setting out the hours that she worked in 2013, the hourly-paid basis on which she was employed and the fact that “this casual working arrangement came to an end.” The e mail concluded as follows:

“You have not been engaged …to carry out any further work since November 2013 and in April 2014 you received a net payment of €327.99 for essay correcting.

“For the avoidance of doubt, you are currently no longer an employee … and I will arrange for a P45 to be issued to your home address.

“According to our detailed analysis of your employment history … and our understanding of the Redundancy Payments Act 1967 – 2007, I can confirm that no entitlement to statutory redundancy has arisen as you do not have the qualifying service required.”

In an e mail on the same day, the complainant replied to the HR department and stated:

“By your own admission I am an employee and you are now finally confirming termination of my employment which means that this is a dismissal in law. I shall be lodging a complaint with the WRC next week.”

Grounds for Complaint

The complainant’s case is that, in contravention of section 15 of the Part-time Work Act, by being dismissed on December 1st 2016, she has been penalised for attempting to invoke her rights under that legislation. She claims that, in response to “legitimate and repeated concerns and queries that I raised about my part-time contract, and my continued efforts to demonstrate to them that they were not entitled in law to fail to recognise or to end my employment,” the university “retaliated” by informing her that she was no longer an employee and by issuing her with a P45. She claims that there were no grounds to justify her dismissal and that it was implemented without recourse to fair procedures.

Employment Status

The respondent’s case is that from the date of the termination of her contract in January 2009, the complainant was never again an employee of the university. For the respondent, Mr Flood argued that, in 2013, the complainant was employed on a contract for service basis, when she was “extended an offer” and “invited” to deliver eight lectures during the 2012/2013 and 2013/2014 academic years. The emails from the associate director of the school where the complainant taught do not suggest that a contract of service relationship existed between the university and the complainant. The associate director’s e mail in which she invited the complainant to deliver the lectures refers to the fact that the allocation of teaching duties is at the invitation of the Academic Programme Director:

“The allocation of teaching duties on the School’s Distance Learning Programmes is at the invitation of the Academic Programme Director in consultation with the Subject Area Head and Associate Dean and may be changed at their discretion.”

To be paid for the lectures she delivered, the complainant was required to submit a claim form, a copy of which was submitted in evidence and which bears the title, “Ad Hoc Claim Form.” In 2014, when the complainant submitted a claim for €327.99 for the correction of essays, she queried why she hadn’t been paid on foot of a claim for some of the lectures she delivered in 2013. It is the university’s position that this is further evidence that the complainant did not have a contract of service with the university.

In February 2014, the complainant was informed that the lectures that she delivered during 2013 would be delivered in future by a member of the permanent staff. It is the respondent’s case that the complainant’s “casual working arrangement” with the university then came to an end.    

The Complainant was not an Employee

In his submission at the hearing, Mr Flood said that evidence that the complainant was not an employee, and of the fact that she was employed on a contract for service, is based on the following:

The complainant was not paid a salary. She was paid an hourly rate on submission of a claim form.

She was not paid for holidays or for any type of absence;

The university was not obliged to offer the complainant work;

The complainant was not obliged to accept work from the university.

Mutuality of Obligation

The concept of mutuality of obligation was expanded on at the hearing. Mr Flood submitted that, for a contract of employment to exist, there must be an obligation on an employer to provide work and an obligation on an employee to accept any work offered. The High Court case of Brightwater Selection (Ireland) Limited v Minister for Social and Family Affairs, [2011] IEHC 510, was cited, and the case of Nethermere (St Neots) Ltd v Taverna and Gardiner [1984] IRLR 240, which is referred to in the Brightwater case. Here, mutuality of obligation is referred to as “…a continuing obligation on the employer to provide work and a continuing obligation on the employee to do the work provided.” There was no continuing obligation on the university to provide work to the complainant in this case.

The UK case of Carmichael and Leese v National Power Plc [1999] WLR 2042, was referred to by Mr Flood as a case where a group of casual tour guides were found not to be employees. This finding was in circumstances where the guides wore the company’s uniform, were trained by the company and had the use of a company vehicle. There was no obligation on the employer or the guides respectively to provide or accept work.

The case of Minister for Agriculture and Food v Barry [2008] IEHC 216), was the first of two outings to the High Court and was eventually appealed to the Supreme Court which referred it back to the Employment Appeals Tribunal. In the first High Court hearing, referring to the principle of mutuality of obligation, Mr Justice Edwards stated:

“If such mutuality is not present, then either there is no contract at all or whatever contract there is must be a contract for services or something else, but not a contract of service. It was characterised in Nethermere (St Neots) Ltd v Gardiner, [1984] ICR 612 as the ‘one sine qua non which can firmly be identified as an essential of the existence of a contract of service’.   Moreover, in Carmichael v. National Power Plc, [1999] ICR, 1226 at 1230 it was referred to as ‘that irreducible minimum of mutual obligation necessary to create a contract of service.’   Accordingly, the mutuality of obligation test provides an important filter. Where one party to a work relationship contends that that relationship amounts to a contract of service, it is appropriate that the court or tribunal seized of that issue should in the first instance examine the relationship in question to determine if mutuality of obligation is a feature of it. If there is no mutuality of obligation, it is not necessary to go further. Whatever the relationship is, it cannot amount to a contract of service. However, if mutuality of obligation is found to exist the mere fact of its existence is not, of itself, determinative of the nature of the relationship and it is necessary to examine the relationship further.”  

Mr Flood argued that the e mail from the associate director in February 2014 shows that there was no obligation on the university to provide the complainant with work. The wording of the mail is clear that there was no commitment to any future work, but an offer to “keep an eye out for any other similar opportunities that might arise.”

The final precedent cited by Mr Flood was also a High Court case, that of The Sunday Tribune Limited (in Liquidation), Re [1984], where the liquidator sought a ruling from the Court with regard to whether a group of journalists were employees or had contracts for service. In the case of one journalist, Ronit Lentin, she provided articles for the newspaper on a regular basis and worked at the offices of the newspaper on an almost weekly basis. The Court found that she was not an employee, despite the regularity of her published articles.

In respect of deductions for tax, PRSI and USC, Mr Flood submitted that these deductions are not determinative of an employment relationship. This was referred to in the Carmichael case considered earlier, where, although the respondent in that case deducted tax and social insurance, the claimants were found not to be employees.

Consideration of the Facts

At the hearing of this complaint, the complainant accepted that her part-time contract that commenced in 1999 was terminated in 2009 and that she would “not have any regard for history.”   In correspondence submitted to the WRC following the hearing, the complainant said that “1/1/2013 (as per P60 2013) represents the start date of my employment with (the respondent) for the purposes of the complaints submitted.”

The issue under consideration therefore is a contention that the work carried out by the complainant over eight days in 2013 was a part-time employment contract and that it was a contract of service. If she was employed on a contract of service, then, the complainant alleges that she was dismissed on December 1st 2016. She further alleges that this purported dismissal was penalisation for seeking to exercise her rights as a part-time employee. An exploration of the facts will assist with a finding on this matter.

It is apparent that the complainant was known in the school where she taught from 1999 to 2009 and in July 2012, she was asked to deliver four lectures in the 2012/2013 academic year. In June 2013, she was asked to deliver four more lectures, this time as part of the 2013/2014 academic year. In the end, all eight lectures were delivered between January and November 2013.   The e mail from the associate director on June 6th 2013 closes off with, “Please advise me by 24th of June if you will undertake to teach this module.” A formal contract of employment was not issued and all the information that the complainant required about the modules and the rate of pay was provided in two e mails.

In February 2014, the associate director informed the complainant that she would not be invited to deliver the lectures in 2014/2015.

In her fixed-term contract of September 2008, the complainant was offered a salary of €7,368.   There are also provisions for holidays, sick leave and pension contributions. For the work done in 2013, the complainant received an hourly rate of €142.30, which is not associated with any lecturer grade pay scale.   No ancillary benefits were provided.  

Pay for the hours worked is claimed using the “Ad Hoc Claim Form.” Before making a claim, the claimant is required to complete an “hourly-paid set-up authorisation form,” differentiating this group of workers from salaried employees. As with all public sector workers, PAYE, PRSI and USC is deducted from earnings. It is the responsibility of each individual to regularise these payments in relation to other employment by submitting an annual tax return.  

In response to the associate director’s communication to the complainant that she would not be required for the 2014/2015 academic year, the complainant wrote, “I requested a copy of my contract of employment from you last year and didn’t get it and I forgot to follow it up with you…Obviously, under the provisions of the Protection of Employees (Fixed-term Work) Act 2003, I have a contract of indefinite duration...”

It appears from this that in 2014, the complainant was anxious to establish continuity from her commencement with the university from 2008 until the end of 2013, but this argument was not aired at the hearing. In her correspondence afterwards, the complainant clarified that her claim is confined to her engagement by the university in 2013.

In 2016, when she sent an e mail to the HR director with the subject heading, “Redundancy / Dismissal,” it appears that the complainant was suggesting that, taking account of her service from 1999, the termination of her contract in 2014 could be considered as a redundancy.   However, this argument subsided when she was informed that her service from January to November 2013 was insufficient to qualify for an entitlement to statutory redundancy.

In her final correspondence to the HR department on May 26th 2017, just before she submitted her complaint to the WRC, the complainant made the allegation of penalisation under the Part-time Work Act.

Employment Status

There is an established practice in the university sector of employing lecturers on an ad hoc basis to deliver courses that cannot be covered by the permanent staff. There is also a practice of inviting professionals in subjects of interest or with useful work experience to deliver short course content. Like the complainant, most of these casual lecturers are employed elsewhere. They are not employees and they and the institutions they work in do not consider that an employment relationship exists between them. In 2013, this was the basis of the relationship between the complainant and the respondent, which was characterised by the following features, which are not features of a contract of service:

An invitation to teach a small number of hours over a short period of time;

A high hourly rate of pay compared to a salaried lecturer;

The fact that no benefits were offered or requested, and the failure to integrate the complainant into the workforce by the issuing of HR policies and procedures;

The requirement to claim for payment, rather than an agreement to pay on foot of a contract;

The ending of the arrangement in an informal manner and the suggestion of further work if similar opportunities arise;

The fact that, in response to the e mail informing her that she was not required in 2014, the complainant took no action.

Having considered this matter, it is my view that the complainant was not employed on a contract of service, but rather a contract for service. It is also my view that, in 2014, the complainant understood this, as she conceded “that the provision of contracted hours is dependent on available work.”

Mutuality of Obligation

It is evident from the correspondence between the complainant and the associate director that the concept of mutual obligation described in the Nethermere case as the “sine qua non” of the employment relationship was non-existent.   The complainant was free to accept the offer to teach the lectures and the respondent was free not to extend the invitation. The basis of the relationship between the complainant and the university was freedom from obligation.

In her correspondence to me following the hearing, the complainant argued that there is no mention of “a no obligation clause” in the correspondence between her and the associate director who offered her the work in 2012 and 2013. Having considered the evidence submitted at the hearing, I note that in her e mails of July 2012 and June 2013 asking the complaint to deliver the lectures, the associate director said,

“This e mail contains some important information regarding the module... and I would encourage you to review this prior to deciding to undertake the module and let me know if you need any additional information.”

I refer also to Mr Flood’s reference in these mails to the fact that,

“The allocation of teaching duties on the School’s Distance Learning Programmes is at the invitation of the Academic Programme Director in consultation with the Subject Area Head and Associate Dean and may be changed at their discretion.”

It is apparent from this that the complainant was free not to undertake the work and the respondent was free to discontinue the offer of work.

The mutuality of obligation is described in the Barry case as “an important filter,” and, in the words of Mr Justice Edwards, “If there is no mutuality of obligation, it is not necessary to go further.”   Based on thisauthority, there is no requirement for me to go any further and I must conclude that the complainant was not an employee of the university when she delivered eight lectures between January and November 2013.

PRSI Status

In correspondence following the hearing, the complainant attached a copy of her P60 for 2013.   She is categorised as a Class AL PRSI contributor, a class that she claims is associated with contracts of service. It is my understanding that “L” in this categorisation, applied to persons with low earnings.   I accept that class A applies to employees generally. As no information with regard to the complainant’s status as a self-employed person was provided to the payroll department of the university, the appropriate PRSI class was class A. However, I do not accept that the application of class A PRSI to the complainant changed the nature of the contractual relationship between her and the respondent.

The End of the Arrangement

For completeness, I wish to address the complainant’s contention that she was dismissed in December 2016.

On February 17th 2014, the associate director in the school where the complainant worked the previous academic year, wrote to the complainant “in relation to our plans for 2014/15…” The director told the complainant that she would not be required to deliver lectures “for next year,” she thanked her for her contributions and said that she would be in touch if suitable opportunities came up on other programmes.

Ten weeks later, on April 28th 2014, the complainant replied,

“While I completely understand that the provision of contracted hours is dependent on available work and I have no issue with this, as a HR practitioner, I would like to request clarity from you regarding the current status of my contract.”

It seems clear from this that the complainant accepted that an offer of lecturing hours was contingent on the availability of work, and by extension, on her own availability to do the work.

In her reply to this mail, the associate director gave the complainant the contact number for a member of the HR department, who, she said, “would be happy to discuss the issues you have mentioned below in relation to a contract…” No evidence was submitted by the complainant to show that she contacted the HR department to discuss her contract. It is apparent however, that she raised the issue again 30 months later on November 23rd 2016, following confirmation from the Revenue Commissioners that she needed a P45 to regularise her tax affairs.

On that date, the complainant sent two e mails with the subject heading, “Redundancy / Dismissal.” One e mail was sent to the director of HR and the other to the professor in the school where the complainant worked until 2009. In the mail to the professor, referring to her dealings with the Revenue Commissioners, the complainant, said, “I told them that based on (name of the associate director’s) correspondence of 17.2.14 I have asked (the university) to clarify whether a redundancy or dismissal has occurred and I have not received a reply.” From this, it is apparent that the complainant understood that her employment was terminated, either by redundancy or dismissal, on February 17th 2014.

However, the complainant argued that she was dismissed in December 2016 when she received confirmation from the HR department that her employment was terminated in November 2013.   This argument is problematic.   It is based on the complainant’s reliance on a statement issued almost three years after her last day at work in which a member of the HR department, said, “for the avoidance of doubt, you are currently no longer an employee… and I will arrange for a P45 to be issued…” I do not accept that this was a letter of dismissal. The complainant had been an employee from 1999 until 2009. She was attempting to establish that her employment was continuous from 1999.   This mail simply confirms that she is no longer an employee.

In December 2016, the payroll department issued a P45, apparently at the request of the complainant.   I am satisfied that the issuing of this document is not associated with dismissal, as the complainant ceased working for the university three years earlier in November 2013.

Conclusion

Section 3(1) of the Protection of Employees (Part-time Work) Act 2001 defines “employee” as,

“a person of any age who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment.”

To exercise her rights under this legislation, the complainant must be or have been an employee of the respondent. As I have concluded that she was employed under a contract for services, she was not an employee. She is therefore excluded from bringing a claim under the Act.

Based on my conclusion that the complainant was not an employee of the respondent, I decide that her complaint under the Protection of Employees (Part-time Work) Act 2001 is not upheld.

I have concluded that the complainant was engaged on a contract for services that ended in November 2013. As more than six months elapsed before the complainant submitted her complaint to the WRC on May 30th 2017, I also decide that her complaint is out of time.

This is a complaint about the fact that, in respect of the lectures she delivered from January to November 2013, the complainant was not issued with a statement of her terms and conditions of employment. In her submission to the hearing, the complainant said that, in February 2014, she asked the associate director of the school where she delivered the lectures for a copy of her contract, but her queries were referred to the HR department.   She said that she never received a response to her request.

For the respondent, Mr Flood said that the complainant was not issued with a contract of employment since the termination of her employment in January 2009. The reason for this is because she has not been an employee since that time and is therefore not entitled to a contract.

Section 1(1)(a) of the Terms of Employment (Information) Act 1994 refers to a contract of employment as “a contract of service or apprenticeship.” The definition of “employee” is the same as that which is set out as the definition of “employee” in the Protection of Employees (Part-time Work) Act 2001, which has been referred to under the heading of the previous complaint.

It is evident from the documents submitted at the hearing, that, in April 2014, when she queried why she had not received a contract, the complainant was given the phone number of a specific person in the HR department who was to discuss this matter with her. No evidence was submitted which shows that the complainant followed up with the HR department. If she had done so, it is likely that the reason she did not receive a contract would have been explained and there would have been no need for this enquiry.

As I have concluded that the complainant was not an employee of the university, it follows that I must also conclude that she has no entitlements under the Terms of Employment (Information) Act.

Based on my conclusion that the complainant was not an employee of the respondent, I decide that her complaint under the Terms of Employment (Information) Act 1994 is not upheld.

For the reasons set out under the heading of the previous complaint in respect of the time limit for submitting a complaint to the WRC, I decide that this complaint is also out of time.

Employment status, university, temporary lecturer