ADJ-00017051

Complainant

Respondent

Anonymised Parties

A Research Administrator

A University.

Representatives

GarethKyne

Darragh WhelanIBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00022073-001

21/09/2018

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

CA-00022073-002

21/09/2018

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

CA-00022073-003

21/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00022073-004

21/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00022073-005

21/09/2018

The Complainant was employed as a Research Administrator from 31/07/2007 until 30^th September 2018.

This complaint was received by the Workplace Relations Commission on 21/09/2018.

Complaint CA – 00022073 – 001 – The Payment of Wages Act 1991.

The Complainant was asked to provide temporary cover for a colleague in September 2016. When the said colleague resigned in December 2016 the Complainant was assigned much of the project work her former colleague had been doing. This project work required on average two additional hours per day. To accommodate the additional work, the Complainant worked between 0800 and 1200 at the Respondent’s premises and then completed her work on the other tasks and functions at home, she worked on average two hours each day at home. There was also a requirement for the Complainant to work on Fridays (during the last 12 months of her employment).

The Complainant did receive compensation for some of this work, this was minimal and did not reflect the work done. It was also done in a most unusual way in that the Complainant was paid to stay at home for 5 weeks to reflect the time in-lieu due for 100 hours of work that she had done and was not paid for.

While this gesture was welcome, it did not accurately reflect the full value of the work carried out by the Complainant over the preceding 18 months.

Formal notification of redundancy was issued to the Complainant on 3^rd May, shortly after she started to press her issues with her employment status and her entitlement to be paid for the work done.

The Respondent will say that they do not pay for additional work done on its behalf and that time in lieu is the established means of dealing with such issues, however there was no real attempt by the Respondent to comply with its own standing practice and no real effort was made to allow the Complainant to take time in lieu. Had she been given the time in lieu the projects she worked on would have ceased to proceed and had she been given the time in lieu she was due as the hours she was due climbed at a rate of 10 or more per week.

The Complainant was made promises by one of the individuals she worked for, he  failed to deliver on the promises made.

For the additional hours claimed in 2017 and for 28 weeks in 2018 the Complainant has calculated a sum of €19,475.

CA – 00022073 – 002 – Terms of Employment (Information) Act, 1994.

The Respondent failed to provide a truthful statement of the terms and conditions pertaining to the Complainant’s employment and did not comply with the requirements of section 3(m) of the Act.

The Complainant was issued with successive contracts of employment each of which purported that she was on a temporary fixed-term contract which was being renewed on an annual basis. The fact that her employment became permanent in 2011 after 4 successive back to back temporary contracts was never communicated to her. This is a clear breach of Section 5 of the Act.

An additional point is that the Complainant was never informed of the existence of collective agreements pertaining to her employment.

CA – 0022073 – 003 – Protection of Employees (Fixed term work) Act, 2001.

The Respondent failed to provide equal treatment to a part-time employee.

The Complainant was granted 10 (part-time) working days holidays per annum for the duration of her 11 years in employment instead of her minimum legal entitlement to 20 (part-time) days annual leave entitlement as provided for under the terms of the Organisation of Working Time Act. She did not receive this bare legal minimum.

The Complainant became a permanent employee in 2011 but was discriminated against by the Respondent who refused to acknowledge the fact of her permanent status and who went further and denied her equivalency of terms and conditions of employment, in contravention of the terms of the Protection of Employees (Fixed Term Work) Act 2001.

It is the understanding of the Complainant that a full-time administrator works 35 hours per week and is entitled to 25 days leave per annum. On that basis the difference between what she was allocated and what the permanent employee receives is three weeks and this stretches back 11 years.

CA – 00022073 – 005 – Organisation of Working Time Act, 1997.

For the duration of her employment the Complainant was given 10 days of annual leave per annum. This was calculated at the rate of 10 days at 4 hours per day. Her legal entitlement should have been 20 days at 4 hours per day.

For the record it should be noted that the Respondent contacted the Complainant prior to the hearing to ask what leave she had taken. In the Complainant’s opinion that this indicates that the Respondent has limited or no records of the Complainant’s annual leave. It is a fact that the Respondent has no records of the Complainant’s working time as required by section 25 of the Act.

The Complainant lodged her claim on 21^st September, less than six months after the end of the leave year 1^st April 2017 to 31^st March 2018. She is therefore seeking compensation for the leave year she did not receive during the six months commencing 1^st April to 30^th September 2018 when her employment terminated.

CA – 00022703 – 004 – Industrial Relations Acts.

The Complainant was employed to provide administrative support to Professor A since 2007. In 2016 she was asked to undertake additional work for Dr. B who promised to pay her for this work, but he failed to live up to this promise. When she raised this matter with the Respondent which she did several times she was told her job was being made redundant because there is no longer any funding available. She became a permanent employee in 2011 but the Respondent has refused to recognise her status and continued to issue her so called “temporary contracts” which purport that she is a temporary employee.

Conclusion.

The Complainant has been badly mistreated by the Respondent who took advantage of her commitment and dedication over a protracted period of time. By failing to acknowledge her permanency she was kept in a totally insecure situation which the Act was designed to prevent. There is no excuse for this. The Respondent is a large publicly funded body. Such an institution cannot claim ignorance of the law and have the claim accepted.

Promising her that she would be paid for the additional work done and then reneging on that promise is illegal and constitutes a breach of contract by the Respondent – a shameful one.

Denying her basic annual leave entitlements is particularly mean, especially when viewed against the leave arrangements for academic staff.

The Complainant is entitled, on the facts, to have all her claims succeed in full.

The case concerns a claim taken by the Complainant against her former employer, the Respondent, under the Payment of Wages Act 1991, Terms of Employment (Information) Act 1994, Protection of Employees (Part Time Work) Act 2001, Industrial Relations Act 1969, and Organisation of Working Time Act 1997 lodged on 21 September 2018. The Complainant’s allegations are as follows:

Payment of Wages Act: Claimant is alleging she has not received her full holiday entitlement. Claimant also alleges that she was not paid for 8 hours work undertaken per week;

Terms of Employment (Information) Act: Claimant alleges she has not received an accurate statement of terms and conditions; namely that the Respondent has allegedly failed to acknowledge her permanent status;

Protection of Employees (Part Time Work) Act: Claimant alleges she has not received the same annual leave entitlement as “other permanent colleagues”;

Industrial Relations Act 1969: Claimant is contesting a redundancy situation;

Organisation of Working Time Act: Claimant is alleging she has not received her full holiday entitlement.

The Respondent refutes these allegations and raises a Preliminary argument - Time limits

            The Complainant’s claim was lodged on 21 September 2018 therefore the currency of the claim runs from 22 March 2018 to 21 September 2018.

                Section 6 of the Payment of Wages Act outlines the time limits in relation to the lodgement of claims as follows:

6- (4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable

            Section 27 of the Organisation of Working Time Act outlines the time limits in relation to the lodgement of claims as follows:

27 – (4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates

5) Notwithstanding subsection (4), a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause

            The Respondent contends that the relevant period for claims can only run from 22 March 2018 to 21 September 2018 and any incidents outside of this time period should be set aside unless the Adjudicator is satisfied that the Claimant has put forward exceptional circumstances or reasonable cause, as the case may be, which prevented the Claimant from lodging the claim within the required time period.

            The Respondent contends that no such exceptional circumstances exist and no matters have arisen that prevented the Claimant from lodging her claim within 6 months of the alleged incidents.

 Preliminary argument – Multiplicity of claims

            The Claimant has lodged three separate claims under the Payment of Wages Act, Protection of Employees (Part Time Work) Act, and Organisation of Working Time Act, all of which address the alleged non-receipt of annual leave entitlements and therefore arise from the same set of facts.

            The Respondent draws the Adjudicator’s attention to A School v A Worker and DEC E-2016-0955, in which the Labour Court found “as a matter of principle the Complainant cannot rely on the same facts to obtain redress under more than one head of liability under the Acts”.

            The Respondent contends that the Claimant must elect the Act under which she wishes to address her allegations regarding annual leave.

Background to the Complainant.

            The Claimant commenced employment with the Respondent on a fixed-term contract on 31 July 2007 and was working as a Research Assistant in the School of Medicine until her role was made redundant with effect 30 September 2018.

            Since commencing with the Respondent, the Complainant’s role as a Research Assistant was attached to an externally funded project. Although the Complainant was issued with successive fixed-term contracts to coincide with the project, by operation of law under Section 9 of the Fixed-Term work Act, the Complainant’s contract became one of indefinite duration on 31 July 2011. As is the long-standing practice of the Respondent, externally funded research roles may be subject to redundancy upon the cessation of the project work or the supporting non-core external funding. This is outlined in each contract received by the Complainant.

            In 2011, the Complainant’s hours were reduced to 16 hours per week. As the Complainant’s work was attached to research projects, she was required to complete time and attendance sheets and submit them for approval with her line manager to the funding body.

            The Complainant was entitled to 12 days annual leave per annum. Notwithstanding any other annual leave taken in 2018, the Complainant took annual leave for the entirety of July 2018. 

Respondent’s arguments

 Payment of Wages

            The Complainant has alleged that that she has not received her annual leave entitlement and has worked for 8 additional hours per week for 20 months which she was not paid. Notwithstanding the preliminary argument set out above in relation to dual claims, the Respondent refutes these allegations in their entirety as the Complainant was on annual leave for the entirety of July 2018.

            As outlined above, the consignable period for claims under the Act is from 22 March 2018 to 21 September 2018 and therefore the Complainant, in order for a claim to succeed, must demonstrate how she did not receive her annual leave entitlement within that period. As per email communication from the time, it is evident that the Complainant has received above her annual leave entitlement and no breach has occurred.

            With regards the 8 hours allegedly worked but unpaid, the Respondent contends that the Complainant was not required or authorized to work beyond her contractual hours. As the Complainant’s work was attached to an externally funded research project, pre-approval for any above contracted hours must be sought and a time and attendance sheet filled out before any additional work is undertaken. The Respondent contends that no approval was given to work above contracted hours and that all work was to be completed within her contractual hours.  It is a fact that the Claimant’s hours were reduced to 16 hours per week from December 2008 to June 2011 but her half-time salary (equivalent to 17.5 hours), which should have reduced accordingly, did not. 

Terms of Employment (Information) Act

            The Complainant has alleged that the Respondent failed to issue her with an accurate statement of terms and conditions as the contracts do not reflect her status as one of indefinite duration. The Respondent refutes this allegation in its entirety.  

            The Complainant received indefinite duration status by operation of law under Section 9 of the Fixed-Term Work Act in July 2011, which is not disputed by the Respondent. 

            The Respondent has referred to collective agreements as contained in the Complainant’s contract dated 16 April 2008 as well as a link to the relevant website containing all policies and procedures.

Protection of Employees (Part Time Work) Act

            The Complainant has alleged that she has not received the same annual leave entitlements as a full-time employee.  Notwithstanding the preliminary argument set out above in relation to dual claims, the Respondent refutes the claim in its entirety. The Complainant’s contract outlines that she has 24 days pro-rata annual leave. As the Complainant was contracted to work as a 50% Research Assistant, her annual leave entitlement was 12 days, (i.e. 24 half days, which is inclusive of 4 Christmas College closures).

            As outlined above, the Complainant was on annual leave for the entirety of July 2018.  In this regard, notwithstanding any other leave she may have discharged in the period, the Complainant’s leave entitlement for 2017/2018 has been discharged by this period alone. 

Industrial Relations Act

            The Claimant has alleged that she is entitled to discussion on options to avoid redundancy and negotiated terms of redundancy. The Respondent engaged with the Claimant’s representative, and this matter is now resolved. The Claimant declined the offer of a Senior Executive Officer (50%) role and an Executive Officer (full-time) position and instead accepted redundancy terms.

              The options offered to the Claimant as per the Public Sector Agreement on Enhanced Redundancy Terms were as follows:

Option 1: Statutory redundancy plus an ex-gratia amount of no more than 3 weeks’ pay per year of service. This option disqualifies the Claimant from working within the public service for a period of at least two years following termination;

Option 2: Statutory redundancy plus an ex-gratia amount of no more than 2 weeks’ pay per year of service. No restrictions are imposed on re-entering the public service.

            Following consultation with the Complainant’s representative, she chose Option 2 as follows:

·         Statutory redundancy - €13,199.04

·         Ex-gratia - €12,635.52

Organisation of Working Time Act

            The Complainant has alleged that she has not received her annual leave entitlement. Notwithstanding the preliminary argument set out above in relation to dual claims, the Respondent refutes these allegations in their entirety as the Complainant was on annual leave for the entirety of July 2018.

            As outlined above, the consignable period for claims under the Act is from 22 March 2018 to 21 September 2018 and therefore the Complainant, in order for a claim to succeed, must demonstrate how she did not receive her annual leave entitlement within that period. As per email communication from the time, it is evident that the Complainant has received above her annual leave entitlement and no breach has occurred.

Conclusion

The Respondent respectfully request that the Adjudicator finds in favour of the Respondent and that these claims fail. The Complainant was always in receipt of her annual leave entailments and no such breach regarding same has occurred under any legislation. The Complainant was required to perform work for which she was authorised and was not required to work above her contracted hours.

The Respondent’s submission, preliminary argument, alleges that the Complainant has lodged three separate claims all of which addresses the alleged non-receipt of annual leave entitlements and therefore arise from the same set of facts. From what I heard at the hearing of the complaint and from re-reading the submissions made this is not the case. Whilst there is some duplication contained within the complaints they are is three separate complaints.

Complaint CA – 00022073 – 001 – The Payment of Wages Act 1991.

I believe this complaint relates to the work carried out by the Complainant for Dr. B i.e. 2 hours per day, 4 days per week, for a period of 18 months. The Complainant states that Dr. B told her she would be paid for this work and reneged on this promise.

The Complainant has calculated a sum of €19,475 for this work. The Respondent has quite correctly stated:

“With regards the 8 hours allegedly worked but unpaid, the Respondent contends that the Complainant was not required or authorized to work beyond her contractual hours. As the Complainant’s work was attached to an externally funded research project, pre-approval for any above contracted hours must be sought and a time and attendance sheet filled out before any additional work is undertaken. The Respondent contends that no approval was given to work above contracted hours and that all work was to be completed within her contractual hours.  It is a fact that the Claimant’s hours were reduced to 16 hours per week from December 2008 to June 2011 but her half-time salary (equivalent to 17.5 hours), which should have reduced accordingly, did not”.

I also have to consider the time period involved. The Respondent has stated that the cognizable period under this legislation is six months, I cannot disagree with this.

The time in lieu that the Complainant received was to address the additional hours worked by the Complainant in the area of exam preparation mentioned in the Complainant’s email dated 10^th May 2018 and replied to by the School Manager on 16^th May 2018 and does not relate in any fashion to the work for Dr.B.

I find it difficult to accept that the Complainant was working these additional hours and the Respondent was not aware of this. Dr. B had promised payment however the Complainant was employed by the Respondent.

I find this complaint under the Payment of Wages Act 1991 to be well founded and order the Respondent to pay the Complainant one third of the sum calculated by the Complainant i.e. €6,491.67.

CA – 00022073 – 002 – Terms of Employment (Information) Act, 1994.

This complaint relates to the terms and conditions of employment (the contracts) issued to the Complainant by the Respondent.

The Complainant contends that the Respondent failed to provide a truthful statement of the terms and conditions pertaining to the Complainant’s employment and did not comply with the requirements of section 3(m) of the Act.

The Respondent at point 6.2 of their submission states:

The Claimant received indefinite duration status by operation of law under section 9 of the Fixed-Term Work Act in July 2011, which is not disputed by the Respondent.

In the letter issued to the Complainant by the Respondent on 10^th February 2017 the following is stated;

As this appointment is for the specific purpose and fixed period at paragraph 2 (above), the provisions of the Unfair Dismissals Act (1997 – 2001) will not apply to a dismissal consisting only of the expiry of the specific purpose or fixed period stated in paragraph 2 (above).

There is no need to say more. This complaint is well founded, I order the Respondent to pay compensation in the sum of €2,263 (four weeks pay) to the Complainant.

CA – 0022073 – 003 – Protection of Employees (Fixed term work) Act, 2001.

The Complainants submission alludes to annual leave entitlements and I feel this complaint is covered by CA – 00022073 – 005.

I therefore dismiss this complaint.

CA – 00022703 – 004 – Industrial Relations Acts.

The Complainant’s submission reads as follows:

The Complainant was employed to provide administrative support to Professor A since 2007. In 2016 she was asked to undertake additional work for Dr. B who promised to pay her for this work, but he failed to live up to this promise. When she raised this matter with the Respondent which she did several times she was told her job was being made redundant because there is no longer any funding available. She became a permanent employee in 2011 but the Respondent has refused to recognise her status and continued to issue her so called “temporary contracts” which purport that she is a temporary employee.

All points raised are covered under the more specific complaints, there is duplication here.

I therefore dismiss this complaint.

CA – 00022073 – 005 – Organisation of Working Time Act, 1997.

The Respondent states that the time limit is a factor to be considered and as per submission section 27 of the Act states:

27 – (4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates

5) Notwithstanding subsection (4), a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause

            “The Respondent contends that the relevant period for claims can only run from 22 March 2018 to 21 September 2018 and any incidents outside of this time period should be set aside unless the Adjudicator is satisfied that the Claimant has put forward exceptional circumstances or reasonable cause, as the case may be, which prevented the Claimant from lodging the claim within the required time period

            The Respondent contends that no such exceptional circumstances exist, and no matters have arisen that prevented the Claimant from lodging her claim within 6 months of the alleged incidents”.

The contracts of employment produced at hearing provide annual leave as follows:

21^st November 2017 – 12 days per annum

16^th April 2008 – “you will be entitled to annual leave pro-rata to 24 days per annum”

15^th June 2010 – “All other terms and conditions are as our previous letter and remain unchanged”.

8^th October 2010 – “All other terms and conditions are as our previous letter and remain unchanged”

9^th June 2014 – no reference to annual leave.

10^th February 2017 – no reference to annual leave.

Whilst these descriptions where applicable are vague I am satisfied that the annual leave entitlement of the Complainant was 12 full days or 24 half days.

The Complainant alleges that she was contacted by the Respondent prior to the hearing asking her about leave entitlements and what she had taken off. The Complainant has alleged that the Respondent has no, or very limited records of leave taken, I am unable to disagree with this opinion, this is a poor reflection on the Respondent and clearly a breach of section 25 of the Act.

The Complainant has stated that she lodged her claim on 21^st September, less than 6 months after the leave year 1^st April 2017 to 31^st March 2018. She is therefore seeking compensation for the entire leave year she did not receive during the leave year in addition to the leave to which she was entitled and did not receive during the six months commencing 1^st April 2018 to 30^th September 2018 when her employment terminated.

The Complainant was on annual leave for the month of July 2018, this was 22 working days. I have calculated that the Complainant accrued 36 days during this period, this leaves a balance of 14 days. The Respondent failed to produce any annual leave records at hearing. I therefore deem the complaint to be well founded and  order the Respondent to pay the Complainant for these days i.e., a sum of €1,584.10.

Under section 27 (3) (c) of the Act a Rights Commissioner may:

Require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstance, but not exceeding 2 years remuneration in respect of the employee’s employment, ……….

Under this section I order the Respondent to pay additional compensation of €2,500 to the Complainant.

All monetary awards should be made to the Complainant within 42 days from the date of this decision.

As outlined above.

Organisation of Working Time Act; Terms of Employment (Information) Act; Industrial Relations Act; Payment of Wages Act; Protection of Employees (Fixed Term Work) Act.