Complainant

Respondent

Anonymised Parties

An Associate Lecturer

A Third Level College

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-00012364-001

07/07/2017

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

CA-00012364-002

07/07/2017

The issues in contention relate to Terms and Conditions of Employment, in their broadest sense, of an Associate Lecturer and comparisons / queries being made relating to other Grades of Lecturer employed by the Institution.

1:1       Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 CA-00012364-001

The Complainant commenced employment in 2002 but resigned in 2005 to resume on a part time basis in February 2010. The Complainant is engaged as an Associate Lecturer at two Leinster locations. She maintained that she was treated les favourably than her full-time colleagues in terms of Annual Leave/Sick leave /Paid Public Holidays, Pay for Exam Corrections, Non-Notification of available extra Hours, being restricted to Evenings only and failing to take proper account of her personal and other obligations in regard to Timetabling.

The Respondent has penalised the Complainant by Reducing her working hours, failures to notify of extra Hours and failing to offer the Complainant proper opportunities of career progression.

The Respondent has acted unfairly and without objective reasons and its behaviour has caused the Complainant considerable distress, upset and loss. The Respondent has treated the Complainant less favourably than a comparable Full-Time employee and has penalised her for invoking her Statutory and indeed Constitutional rights.

1:2        Section 13 of the Industrial Relations Act, 1969, CA   00012364-002

The Respondent employer has and continues to, offer less favourable conditions, in all areas of employment and conditions, to its part-time employees as compared to its full-time employees.

The Complainant has endeavoured to resolve this issue together with other matters as part of a Grievance with the Respondent but to no avail.

2:1       Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 CA-00012364-001

Notwithstanding the jurisdictional issue raised as an opening Argument the Respondent further argued that the Complainant had failed to properly establish a Relevant Full-Time comparator. No full time Associate Lecturer positions exist and therefore no comparisons can be drawn. Comparisons with Full Time Day Lectures are also invalid as the Employment contractual basis, roles and job descriptions are fundamentally at variance such that no comparisons on which to base a claim can be based. Extensive Respondent evidence was presented to substantiate this point across all grounds of the claim. Reference was made to Legal precedents such as CUS v Dooley [2011] 4 I.R.517 and Winton v Steel Company of Ireland Ltd [1999] E.L.R.1.

The claim lacked this fundamental Comparator foundation as laid out in the 2001 Act and therefore could not succeed. Sections 7(2) and Section 7(3) refer.

In addition, on the Grounds of Objective Justification the Respondent pointed out that the Complainant was employed on what are essentially self-financing Adult/ Continuity Learning programmes which have a completely separate Financial basis to full time Day Courses that are largely financed by the Government Exchequer. Irrespective of any views on the merits of the claim a finding giving potentially significant cost increases to these Adult/ Continuity Learning Programmes would have serious financial impacts that would effectively jeopardise the viability of the Programmes.

Detailed Section by Section evidence was given to rebut all aspects of the Complaint regarding Hours, Timetabling, Examination Pay, Career Progression, Information on Alternative/extra Hours etc. The claim of any Penalisation was vigorously disputed.

2:2       Section 13 of the Industrial Relations Act, 1969, CA   00012364-002

The opening legal Argument was repeated. This is a Body of Workers claim and as such an Adjudication Officer is precluded from hearing same. Section 13 of the IR Act, 1969 refers.

Notwithstanding this point the Terms & Conditions and rate of Pay of the Complainant and all her Associate Lecturer colleagues are set nationally and any alterations would have to come from this level and not from an individual College.

3:1       Opening Jurisdictional Point and Complaint under the Industrial Relations Act, 1969, CA 00012364-002

This case and its close associate Adj 14638 was heard over three days stretching from March 2018 to March 2019. Most of the intervening gap was due to an understanding in March 2018 to allow the National level Haddington Road “conversion talks” time to make progress. Regrettably ,in this case but for good logistical reasons at National level, this process was being done in Three sequential Modules. By the end of 2018, it appeared that Module Three - which I was led to believe, would consider Associate lectures, had not as yet got into substantive discussions. The delays allegedly being due, among other things, to Trade Union balloting on earlier Modules.

Extensive documentary evidence in both cases with wide ranging references to Constitutional matters and European Court of Justice referrals were produced by the Complainant and responded to by the Respondent. There was a realistic fear on the part of the Adjudication Officer that the case was beginning to seriously lose sight of the basic legislation under which it was referred.

The case clearly indicates the tensions that can arise between the Collective Negotiation Process and the Individual in Industrial relations and employment rights matters. These are issues for grander stages than a first instance Adjudication Hearing

Accordingly, the claim before the Adjudication Hearing was under the Industrial Relations Act,1969 and as such only the provisions of that Act can apply.

I had to come to the view that the case under the Industrial Relations Act,1969 was governed by Section 13 of the Act.

13.— F15[…]

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

The issues in contention are clearly being considered by National level talks, called the “Conversion Process”. The case in hand falls, without any doubt in my mind, into the remit of these talks. Accordingly, I have no jurisdiction, as per Section 13 above, to make a Recommendation.

In overall context it was clear that the Respondent Institution held the Complainant in very high regard and there was no evidence I could see of any suggestions of individual Penalisations being directed towards her.

3:2       Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 CA-00012364-001

The claim lacked this fundamental and required Comparator foundation as laid out in the 2001 Act and therefore could not succeed. Sections 7(2) and Section 7(3) refer. The position of Associate Lecturer does not exist as a full-time position and therefore cannot be a Comparator.

A Comparison with a Day Time Full Time or Part Time Lecturer or Assistant Lecturers cannot be valid as both roles are different in many details. The Day Time roles are Department of Ed and Science sanctioned Academic roles with a much broader academic and administrative remit that that of Associate roles on primarily evening “Life Long” Learning courses.

The Complainant argued vigorously that many of these referenced distinctions are spurious and distinctly clouded in daily operational practice. This may well be the case and the “Conversion” talks referred to above in the Industrial relations Section are dealing with the issues at Central level.

However, in strict terms of the case referred under the Protection of Employees (Part-Time Work) Act, 2001 CA-00012364-001 which is all that is for Adjudication I must find that the provisions and requirements of Section 7(2) and Section7(3) of the Act apply.

In addition, the legal precedents such as CUS v Dooley [2011] 4 I.R.517 and Winton v Steel Company of Ireland Ltd [1999] E.L.R.1.advanced by the Respondent were persuasive on this point.

As regards Penalisation or Victimisation of the Complainant I found no evidence to support this contention. Differences may have arisen, but these were due to the basic status of the Complainant as an Associate Lecturer and nothing personal to her.

In summary therefore having considered all the Oral and Written evidence presented, the complaint is dismissed as not being Well Founded.

Act

Complaint/Dispute Reference No.

Summary Decision & Recommendation/ Please refer to Section Three above for reasoning.

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

CA-00012364-001

Claim is dismissed as not well founded.

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

CA-00012364-002

Claim is set aside – a Body of Workers claim, and Adjudication Officer has no Juridistiction -Ref Section 13 of the Act.