ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017392
Parties:
Complainant
Respondent
Anonymised Parties
Tutor/Lecturer
Educational institution
Complaint(s):
Act
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
CA-00021879-001
17/09/2018
Date of Adjudication Hearing: 27/11/2018
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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.
Background:
The complainant commenced employment with the respondent on 4/2/15. From that date up until June 2018 he was employed on a series of contracts either as a tutor or a lecturer, working 10-12 hours a` week.
His employment was terminated on 23/7/2018. He contends that he was unfairly dismissed in order to prevent him acquiring a contract of indefinite duration.
He earned €27.99 an hour as a tutor/ demonstrator and €75 an hour as a lecturer.
He submitted his complaint to the WRC on 17/9/18.
Summary of Complainant’s Case:
The claimant alleges that his employment was terminated in breach of the Unfair Dismissals Act, 1977. He maintains that the decision to issue him with a fixed -term contract and to terminate his employment on the 23/7/2018 was designed to ensure that he did not get a contract of indefinite duration.
Service history.
He was employed on the following fixed-term contracts:
From 4/2/15 to 31/8/15 as a tutor delivering tuition on two modules – Web Design and Analytics and Information Management (Databases).
From 1/9/15 to 31/8/2016 as a tutor/ demonstrator on the same modules,
From 1/1/17 to 30/6/2107 as a Senior Teaching Assistant, lecturing on the above modules.
From 17/1/2018 to 30/6/2018, as a lecturer on the same modules replacing a colleague who was absent on sick leave.
The complainant advises that there was a continuing requirement for a lecturer in Web Design for the 2018-19 academic year as the person who had been unwell and whom he had been replacing had resigned. He maintains that the only reason he was not retained for the 2018-19 academic year to provide ongoing tuition to students in Web Design was to prevent him from accumulating the service necessary to acquire a contract of indefinite duration. In accordance with the process for appointment, the complainant requested that he be considered for the vacancy. He made this request to the module coordinator, the subject head and department head. A less experienced tutor was appointed to fill the position of lecturer in Web Design in the summer of 2018
In support of his contention that the respondent was intent on circumventing the legislation, he submitted emails which he received from his module coordinator expressing a wish to retain him but referring to the college’s desire not to enable tutors to accumulate more than 4 years employment in this role and labour legislation rights. He submits email correspondence between himself and the subject head in which the subject head does not disabuse the complainant of his belief that it is merely the college’s opposition to staff getting a CID which has put him out of contention for the lectureship. He also submits emails from July 2018 in which it appears that the subject head is advocating for him though the job was already gone at that stage. The complainant states that the subject head also told him that the respondent considered him over the risk for a CID.
As evidence of the continuing requirement for tuition in his subjects for the 2018-19 academic year, he points to the college’s offer of tutoring hours, made to him on the 17 August by the subject administrative assistant. This was confusing for the complainant as neither the subject head or module coordinator had indicated that such hours were available. These hours were then withdrawn. He was asked on the 23 August 2018 to develop the materials for the module in Databases for the 2018-19 academic year. The new subject coordinator commented on the fact that while the complainant was designing the materials for the course he was not permitted to tutor on the course.
Loss.
The complainant identifies his loss at €20,000 over the coming 2 terms.
The complainant has acquired full time employment since March 2018, working 40 hours a week on a gross monthly salary of €2500. In September the job became permanent and he was increased to €3,350 per month.
Summary of Respondent’s Case:
This complaint is rejected by the respondent.
At the time of the termination of his employment in June 2018, the complainant was employed on a fixed-term contract. That contract expressly excluded the terms of the Unfair Dismissals Act, 1977.
Thus, the allegation of unfair dismissal in breach of the Act is excluded under the terms of the Act.
The complainant commenced working with the respondent on January 19, 2015 in a tutor/demonstrator role. He was a member of the modular staff and issued with a modular staff contract. Modular staff are used by universities to supplement permanent staff. These staff would usually have jobs outside the University. Those modular staff employed in lecturer roles would have a specialised recognised competence in a professional activity obtained after many years’ experience following graduation. They would not be expected to have a PhD to perform the role. For example, the claimant does not have a PhD. The hourly rate for a lecturing role is €75.
Those in tutoring roles tend to have little professional experience and it is common to have this work done by students studying for a PhD. The hourly rate for tutor/demonstrator role is €27.99.
The terms and conditions of employment for a tutor/demonstrator role state
• ‘Exceptional approval’ is required for tutor/demonstrator work if the person is not a registered student.
• The University has an objective to double the number of PhD students. To facilitate this, work as a tutor/demonstrator is made available to such students.
• If a student ceases to be registered as an MA/PhD student then their employment automatically ceases in the role as a tutor/demonstrator.
Complaint’s service history.
The complainant worked as a tutor/demonstrator except for the two periods during which he was employed as a senior teaching assistant for 6 months (1 January – 30 June 2017) and as a lecturer for 6 months (22 January – 30 June 2018).
The respondent submitted copies of the four contracts held by the complainant during the period 4/2/15 – 30 /6/2018 which correspond with the evidence given by the complainant.
In the academic year 2015/2016 he was a tutor/demonstrator in semester 1 and a tutor/demonstrator in semester 2. The claimant earned €2,178 in that academic year.
In 2016/2017 he was a tutor/demonstrator in semester 1 and in semester 2. On January 1, 2017 he also took on the role of a senior teaching assistant on a fixed-term contract basis until June 30, 2017. This occurred because of the teaching remission given to a permanent employee. He earned €2,169 for tutoring, €5,013 on the fixed term contract and also €3,280 for correcting essays/exams in that academic year. A copy of his P60 for 2017 shows a total gross pay of €13,248.
In the academic year 2017/2018 he worked as a tutor/demonstrator in semester 1. On September 11, 2017 he took on the role of senior tutor. Due to curriculum change this module was delivered to twice the normal number of students (i.e. 900 students) which required twice the normal number of tutors. It was then decided to appoint senior tutors who had additional responsibilities including coordinating the work of the other tutors/demonstrators. The senior tutors were paid additional tutorial hours for this work. In the academic year 2017/2018 he was paid €7,150 for tutoring. This level of income reflected the double payment made for taking on the role of Senior Tutor. In addition, he received €5,164 for lecturing work and €821 for correcting essays.
On January 22, 2018 the claimant was offered a fixed-term contract for delivery of lectures in Web Design. It was to replace a module lecturer who could not teach due to illness. The claimant was tutoring on the module and this was the reason he was given the role of delivering the remaining lectures on that module i.e. January to May 2018. The contract terminated on June 30, 2018.
The claimant was initially and mistakenly offered tutoring hours in Data Bases for the academic year 2018-2019. This offer was later withdrawn by the University. The email was sent to the claimant and all other tutors employed in the 2018-19 academic year setting out the slots available. The claimant had responded to this email stating that he was available to work for 5 hours per week. If the claimant had taken up this offer he would have earned €671.76 for tutoring in Web Design and the same amount for tutoring on Databases.
There were no senior tutors appointed as the tutoring requirement on the module was significantly reduced and neither are tutors involved in exam corrections.
Claimant’s Final Contract
This 6-month contract ending on 30 June 2018 contained a clause stating that “The Unfair Dismissals Acts 1977 – 2001 shall not apply to the ending of this contract by reason of expiry of the fixed term period.”
The contract was signed on behalf of the University and by the claimant.
This meets the exemption from the Act set out in section 2(2)(b) of the Act which excludes the application of the Act where
“ the employment was under a contract of employment for a fixed term or for a specified purpose and the dismissal consisted only of the expiry of the fixed term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.”
The claimant was employed as a member of the modular staff principally in the role of tutor/demonstrator. There is no obligation on the University to offer such staff work in the following academic year.
Modular staff are employed to bring their professional knowledge and experience to the University. Such staff normally carry out their professional activity outside the University. This is reflected in the level and diversity of income one can earn each year. These staff would not expect to continue indefinitely in such a role. It is not in the nature of such roles that they be permanent as it would block the opportunities for development of future generations of MA/PhD students.
It is not correct to allege that the University is seeking to cover needs which are permanent in nature with temporary employees. The claimant signed an agreement in relation to terms and conditions of employment for tutor/demonstrator work. This clearly states that the work is temporary in nature and no warranty is given in relation to further employment. There is also a clause that such work may be renewed for up to 4 years and for no longer than this time. This is the normal length of time a structured PhD takes in UCD.
The respondent relies on UCC v Thomas O’Riordan (FTD 1116), where the Labour Court stated, “The Court accepts that it is an entirely legitimate objective of the Respondent to use fixed-term contracts to provide graduates with access to research opportunities and that they are entirely appropriate and necessary for that purpose.”
Thus, it is essential that contracts for such a (research) purpose do not run indefinitely.
The offer of further tutor/demonstrator work was an error made by an Administrator. No offer was ever made to the claimant to do lecturing work in the academic year 2018/2019.
The claimant has alleged that he was not paid for work done in August 2018. However, the claimant submitted a claim for 30 hours pay when the pre-agreed amount was 20 hours. The University has offered to pay 25 hours for this work as a compromise to resolve this matter.
For all of the above reasons the University is requesting that the Adjudicator reject this complaint.
Findings and Conclusions:
I must decide if the complainant can draw on the protection of the Unfair Dismissals Act 1977 in the circumstances of a complaint concerning the expiry of a fixed-term contract, and if so, decide on the unfairness or otherwise of the dismissal.
His fourth fixed term contract of 6 month’s duration expired on June 30, 2018.
His complaint of unfair dismissal rests on the failure of the respondent to maintain him in either of two positions. One of the positions was the lectureship which he had held on a fixed term basis for the period January to June 2018 and which was continuing into the 2018-19 academic year. He was considered but not selected. The process for making such appointments is that the subject head consults with the modular coordinator and makes a choice form those who have declared an interest. However deficient that process might be, it is not sufficient to surmount the provisions of section 2(2)(b) of the Act of 1977. Furthermore, I accept that the offer of a fixed- term contract on 22 January, which expired on 30 June 2018 was for a valid reason – the replacement of a colleague absents on sick leave. The contact signed by the complainant provides this objective reason as the basis for the fixed term contract. The complainant signed a fixed tern contract which expressly excluded the application of the Act of 1977 on the cesser of his employment. Section 2(2)(b) of the Act excludes the application of the Act where
“ the employment was under a contract of employment for a fixed term or for a specified purpose and the dismissal consisted only of the expiry of the fixed term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.”
That the job was continuing does not cancel out the fact that contract signed by the complainant
· was in writing
· states that the Unfair Dismissals Act, 1977 will not apply to a dismissal which occurs only as a result of the end of the contract arriving
· was signed by both employee and employer.
As I do not find that the provision of a fixed term contract on 22 January 2018, following on a fixed term contract for the position of tutor was for purposes of escaping liability under the 1977 Act, as prohibited by the section 3 of the Unfair Dismissals ( Amendment Act) 1993,(aside from the fact that the contract was offered on the 22/1/12018), I cannot find that the failure to renew the contract after its expiry on the 30 June 22018 comes within the ambit of the Act.
The second position which the respondent denied him was the tutoring role, initially offered in August 2018 and then withdrawn shortly afterwards. The complainant believes that the failure to renew the contract as a tutor after the 30 June 2018 amounts to a breach of the Act of 1977.The contracts for tutors and signed by the complainant set out the objective grounds for the fixed- term contract and made it clear that they existed to serve the college’s desire to encourage more students to take up Ph.Ds. and teach at the same time in their field of study. These contracts submitted in evidence also stated that there was no guarantee of future employment. The contract was signed by the complainant excluding the application of the Act of 1977 on the expiry of the contract
I accept that the offer to take up tutoring hours was sent to all tutors working during the 2017-18 academic year. I accept that it was a mistake as the complainant stated he was confused by the offer as he had already been told by that point by the new coordinator that there were no hours for him. I accept that it is legitimate for the respondent to encourage a greater number of students to undertake a Ph.D.- a project assisted by these students gaining knowledge in the field of their study and providing them with an income to maintain their doctoral studies. I therefore accept that the preservation of these tutor/ demonstrator posts with a tenure of 4 years, for students pursuing a PhD albeit with collateral damage for non- PhD students, such as the complainant, is not a ruse to escape liability under the Act. The respondent relies on UCC v Thomas O’Riordan ((FTD 1116). That complaint concerned research students. While the complainant was engaged in work which was ongoing, it appears to be a legitimate and appropriate aim to encourage the uptake of students pursuing a Ph.D. and to facilitate the acquisition of this degree through short- term employment projects.
I find that the Act does not apply to the expiry of the fixed term contracts for tutor/demonstrators.
On the basis of the evidence, I do not find the complaint to be well founded.
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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 do not find this complaint to be well founded.
Dated: 7.5.19
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Key Words:
Unfair dismissal and expiry of fixed- term contract.
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017392
Parties:
Complainant
Respondent
Parties
Ronan Frawley
University College Dublin
Complainant
Respondent
Anonymised Parties
Tutor/Lecturer
Educational institution
Representatives
Self-represented
Peter Flood Ibec
Complaint(s):
Act
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
CA-00021879-001
17/09/2018
Date of Adjudication Hearing: 27/11/2018
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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.
Background:
The complainant commenced employment with the respondent on 4/2/15. From that date up until June 2018 he was employed on a series of contracts either as a tutor or a lecturer, working 10-12 hours a` week.
His employment was terminated on 23/7/2018. He contends that he was unfairly dismissed in order to prevent him acquiring a contract of indefinite duration.
He earned €27.99 an hour as a tutor/ demonstrator and €75 an hour as a lecturer.
He submitted his complaint to the WRC on 17/9/18.
Summary of Complainant’s Case:
The claimant alleges that his employment was terminated in breach of the Unfair Dismissals Act, 1977. He maintains that the decision to issue him with a fixed -term contract and to terminate his employment on the 23/7/2018 was designed to ensure that he did not get a contract of indefinite duration.
Service history.
He was employed on the following fixed-term contracts:
From 4/2/15 to 31/8/15 as a tutor delivering tuition on two modules – Web Design and Analytics and Information Management (Databases).
From 1/9/15 to 31/8/2016 as a tutor/ demonstrator on the same modules,
From 1/1/17 to 30/6/2107 as a Senior Teaching Assistant, lecturing on the above modules.
From 17/1/2018 to 30/6/2018, as a lecturer on the same modules replacing a colleague who was absent on sick leave.
The complainant advises that there was a continuing requirement for a lecturer in Web Design for the 2018-19 academic year as the person who had been unwell and whom he had been replacing had resigned. He maintains that the only reason he was not retained for the 2018-19 academic year to provide ongoing tuition to students in Web Design was to prevent him from accumulating the service necessary to acquire a contract of indefinite duration. In accordance with the process for appointment, the complainant requested that he be considered for the vacancy. He made this request to the module coordinator, the subject head and department head. A less experienced tutor was appointed to fill the position of lecturer in Web Design in the summer of 2018
In support of his contention that the respondent was intent on circumventing the legislation, he submitted emails which he received from his module coordinator expressing a wish to retain him but referring to the college’s desire not to enable tutors to accumulate more than 4 years employment in this role and labour legislation rights. He submits email correspondence between himself and the subject head in which the subject head does not disabuse the complainant of his belief that it is merely the college’s opposition to staff getting a CID which has put him out of contention for the lectureship. He also submits emails from July 2018 in which it appears that the subject head is advocating for him though the job was already gone at that stage. The complainant states that the subject head also told him that the respondent considered him over the risk for a CID.
As evidence of the continuing requirement for tuition in his subjects for the 2018-19 academic year, he points to the college’s offer of tutoring hours, made to him on the 17 August by the subject administrative assistant. This was confusing for the complainant as neither the subject head or module coordinator had indicated that such hours were available. These hours were then withdrawn. He was asked on the 23 August 2018 to develop the materials for the module in Databases for the 2018-19 academic year. The new subject coordinator commented on the fact that while the complainant was designing the materials for the course he was not permitted to tutor on the course.
Loss.
The complainant identifies his loss at €20,000 over the coming 2 terms.
The complainant has acquired full time employment since March 2018, working 40 hours a week on a gross monthly salary of €2500. In September the job became permanent and he was increased to €3,350 per month.
Summary of Respondent’s Case:
This complaint is rejected by the respondent.
At the time of the termination of his employment in June 2018, the complainant was employed on a fixed-term contract. That contract expressly excluded the terms of the Unfair Dismissals Act, 1977.
Thus, the allegation of unfair dismissal in breach of the Act is excluded under the terms of the Act.
The complainant commenced working with the respondent on January 19, 2015 in a tutor/demonstrator role. He was a member of the modular staff and issued with a modular staff contract. Modular staff are used by universities to supplement permanent staff. These staff would usually have jobs outside the University. Those modular staff employed in lecturer roles would have a specialised recognised competence in a professional activity obtained after many years’ experience following graduation. They would not be expected to have a PhD to perform the role. For example, the claimant does not have a PhD. The hourly rate for a lecturing role is €75.
Those in tutoring roles tend to have little professional experience and it is common to have this work done by students studying for a PhD. The hourly rate for tutor/demonstrator role is €27.99.
The terms and conditions of employment for a tutor/demonstrator role state
• ‘Exceptional approval’ is required for tutor/demonstrator work if the person is not a registered student.
• The University has an objective to double the number of PhD students. To facilitate this, work as a tutor/demonstrator is made available to such students.
• If a student ceases to be registered as an MA/PhD student then their employment automatically ceases in the role as a tutor/demonstrator.
Complaint’s service history.
The complainant worked as a tutor/demonstrator except for the two periods during which he was employed as a senior teaching assistant for 6 months (1 January – 30 June 2017) and as a lecturer for 6 months (22 January – 30 June 2018).
The respondent submitted copies of the four contracts held by the complainant during the period 4/2/15 – 30 /6/2018 which correspond with the evidence given by the complainant.
In the academic year 2015/2016 he was a tutor/demonstrator in semester 1 and a tutor/demonstrator in semester 2. The claimant earned €2,178 in that academic year.
In 2016/2017 he was a tutor/demonstrator in semester 1 and in semester 2. On January 1, 2017 he also took on the role of a senior teaching assistant on a fixed-term contract basis until June 30, 2017. This occurred because of the teaching remission given to a permanent employee. He earned €2,169 for tutoring, €5,013 on the fixed term contract and also €3,280 for correcting essays/exams in that academic year. A copy of his P60 for 2017 shows a total gross pay of €13,248.
In the academic year 2017/2018 he worked as a tutor/demonstrator in semester 1. On September 11, 2017 he took on the role of senior tutor. Due to curriculum change this module was delivered to twice the normal number of students (i.e. 900 students) which required twice the normal number of tutors. It was then decided to appoint senior tutors who had additional responsibilities including coordinating the work of the other tutors/demonstrators. The senior tutors were paid additional tutorial hours for this work. In the academic year 2017/2018 he was paid €7,150 for tutoring. This level of income reflected the double payment made for taking on the role of Senior Tutor. In addition, he received €5,164 for lecturing work and €821 for correcting essays.
On January 22, 2018 the claimant was offered a fixed-term contract for delivery of lectures in Web Design. It was to replace a module lecturer who could not teach due to illness. The claimant was tutoring on the module and this was the reason he was given the role of delivering the remaining lectures on that module i.e. January to May 2018. The contract terminated on June 30, 2018.
The claimant was initially and mistakenly offered tutoring hours in Data Bases for the academic year 2018-2019. This offer was later withdrawn by the University. The email was sent to the claimant and all other tutors employed in the 2018-19 academic year setting out the slots available. The claimant had responded to this email stating that he was available to work for 5 hours per week. If the claimant had taken up this offer he would have earned €671.76 for tutoring in Web Design and the same amount for tutoring on Databases.
There were no senior tutors appointed as the tutoring requirement on the module was significantly reduced and neither are tutors involved in exam corrections.
Claimant’s Final Contract
This 6-month contract ending on 30 June 2018 contained a clause stating that “The Unfair Dismissals Acts 1977 – 2001 shall not apply to the ending of this contract by reason of expiry of the fixed term period.”
The contract was signed on behalf of the University and by the claimant.
This meets the exemption from the Act set out in section 2(2)(b) of the Act which excludes the application of the Act where
“ the employment was under a contract of employment for a fixed term or for a specified purpose and the dismissal consisted only of the expiry of the fixed term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.”
The claimant was employed as a member of the modular staff principally in the role of tutor/demonstrator. There is no obligation on the University to offer such staff work in the following academic year.
Modular staff are employed to bring their professional knowledge and experience to the University. Such staff normally carry out their professional activity outside the University. This is reflected in the level and diversity of income one can earn each year. These staff would not expect to continue indefinitely in such a role. It is not in the nature of such roles that they be permanent as it would block the opportunities for development of future generations of MA/PhD students.
It is not correct to allege that the University is seeking to cover needs which are permanent in nature with temporary employees. The claimant signed an agreement in relation to terms and conditions of employment for tutor/demonstrator work. This clearly states that the work is temporary in nature and no warranty is given in relation to further employment. There is also a clause that such work may be renewed for up to 4 years and for no longer than this time. This is the normal length of time a structured PhD takes in UCD.
The respondent relies on UCC v Thomas O’Riordan (FTD 1116), where the Labour Court stated, “The Court accepts that it is an entirely legitimate objective of the Respondent to use fixed-term contracts to provide graduates with access to research opportunities and that they are entirely appropriate and necessary for that purpose.”
Thus, it is essential that contracts for such a (research) purpose do not run indefinitely.
The offer of further tutor/demonstrator work was an error made by an Administrator. No offer was ever made to the claimant to do lecturing work in the academic year 2018/2019.
The claimant has alleged that he was not paid for work done in August 2018. However, the claimant submitted a claim for 30 hours pay when the pre-agreed amount was 20 hours. The University has offered to pay 25 hours for this work as a compromise to resolve this matter.
For all of the above reasons the University is requesting that the Adjudicator reject this complaint.
Findings and Conclusions:
I must decide if the complainant can draw on the protection of the Unfair Dismissals Act 1977 in the circumstances of a complaint concerning the expiry of a fixed-term contract, and if so, decide on the unfairness or otherwise of the dismissal.
His fourth fixed term contract of 6 month’s duration expired on June 30, 2018.
His complaint of unfair dismissal rests on the failure of the respondent to maintain him in either of two positions. One of the positions was the lectureship which he had held on a fixed term basis for the period January to June 2018 and which was continuing into the 2018-19 academic year. He was considered but not selected. The process for making such appointments is that the subject head consults with the modular coordinator and makes a choice form those who have declared an interest. However deficient that process might be, it is not sufficient to surmount the provisions of section 2(2)(b) of the Act of 1977. Furthermore, I accept that the offer of a fixed- term contract on 22 January, which expired on 30 June 2018 was for a valid reason – the replacement of a colleague absents on sick leave. The contact signed by the complainant provides this objective reason as the basis for the fixed term contract. The complainant signed a fixed tern contract which expressly excluded the application of the Act of 1977 on the cesser of his employment. Section 2(2)(b) of the Act excludes the application of the Act where
“ the employment was under a contract of employment for a fixed term or for a specified purpose and the dismissal consisted only of the expiry of the fixed term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.”
That the job was continuing does not cancel out the fact that contract signed by the complainant
· was in writing
· states that the Unfair Dismissals Act, 1977 will not apply to a dismissal which occurs only as a result of the end of the contract arriving
· was signed by both employee and employer.
As I do not find that the provision of a fixed term contract on 22 January 2018, following on a fixed term contract for the position of tutor was for purposes of escaping liability under the 1977 Act, as prohibited by the section 3 of the Unfair Dismissals ( Amendment Act) 1993,(aside from the fact that the contract was offered on the 22/1/12018), I cannot find that the failure to renew the contract after its expiry on the 30 June 22018 comes within the ambit of the Act.
The second position which the respondent denied him was the tutoring role, initially offered in August 2018 and then withdrawn shortly afterwards. The complainant believes that the failure to renew the contract as a tutor after the 30 June 2018 amounts to a breach of the Act of 1977.The contracts for tutors and signed by the complainant set out the objective grounds for the fixed- term contract and made it clear that they existed to serve the college’s desire to encourage more students to take up Ph.Ds. and teach at the same time in their field of study. These contracts submitted in evidence also stated that there was no guarantee of future employment. The contract was signed by the complainant excluding the application of the Act of 1977 on the expiry of the contract
I accept that the offer to take up tutoring hours was sent to all tutors working during the 2017-18 academic year. I accept that it was a mistake as the complainant stated he was confused by the offer as he had already been told by that point by the new coordinator that there were no hours for him. I accept that it is legitimate for the respondent to encourage a greater number of students to undertake a Ph.D.- a project assisted by these students gaining knowledge in the field of their study and providing them with an income to maintain their doctoral studies. I therefore accept that the preservation of these tutor/ demonstrator posts with a tenure of 4 years, for students pursuing a PhD albeit with collateral damage for non- PhD students, such as the complainant, is not a ruse to escape liability under the Act. The respondent relies on UCC v Thomas O’Riordan ((FTD 1116). That complaint concerned research students. While the complainant was engaged in work which was ongoing, it appears to be a legitimate and appropriate aim to encourage the uptake of students pursuing a Ph.D. and to facilitate the acquisition of this degree through short- term employment projects.
I find that the Act does not apply to the expiry of the fixed term contracts for tutor/demonstrators.
On the basis of the evidence, I do not find the complaint to be well founded.
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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 do not find this complaint to be well founded.
Dated: 7.5.19
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Key Words:
Unfair dismissal and expiry of fixed- term contract.
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017392
Parties:
Complainant
Respondent
Parties
Ronan Frawley
University College Dublin
Complainant
Respondent
Anonymised Parties
Tutor/Lecturer
Educational institution
Representatives
Self-represented
Peter Flood Ibec
Complaint(s):
Act
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
CA-00021879-001
17/09/2018
Date of Adjudication Hearing: 27/11/2018
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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.
Background:
The complainant commenced employment with the respondent on 4/2/15. From that date up until June 2018 he was employed on a series of contracts either as a tutor or a lecturer, working 10-12 hours a` week.
His employment was terminated on 23/7/2018. He contends that he was unfairly dismissed in order to prevent him acquiring a contract of indefinite duration.
He earned €27.99 an hour as a tutor/ demonstrator and €75 an hour as a lecturer.
He submitted his complaint to the WRC on 17/9/18.
Summary of Complainant’s Case:
The claimant alleges that his employment was terminated in breach of the Unfair Dismissals Act, 1977. He maintains that the decision to issue him with a fixed -term contract and to terminate his employment on the 23/7/2018 was designed to ensure that he did not get a contract of indefinite duration.
Service history.
He was employed on the following fixed-term contracts:
From 4/2/15 to 31/8/15 as a tutor delivering tuition on two modules – Web Design and Analytics and Information Management (Databases).
From 1/9/15 to 31/8/2016 as a tutor/ demonstrator on the same modules,
From 1/1/17 to 30/6/2107 as a Senior Teaching Assistant, lecturing on the above modules.
From 17/1/2018 to 30/6/2018, as a lecturer on the same modules replacing a colleague who was absent on sick leave.
The complainant advises that there was a continuing requirement for a lecturer in Web Design for the 2018-19 academic year as the person who had been unwell and whom he had been replacing had resigned. He maintains that the only reason he was not retained for the 2018-19 academic year to provide ongoing tuition to students in Web Design was to prevent him from accumulating the service necessary to acquire a contract of indefinite duration. In accordance with the process for appointment, the complainant requested that he be considered for the vacancy. He made this request to the module coordinator, the subject head and department head. A less experienced tutor was appointed to fill the position of lecturer in Web Design in the summer of 2018
In support of his contention that the respondent was intent on circumventing the legislation, he submitted emails which he received from his module coordinator expressing a wish to retain him but referring to the college’s desire not to enable tutors to accumulate more than 4 years employment in this role and labour legislation rights. He submits email correspondence between himself and the subject head in which the subject head does not disabuse the complainant of his belief that it is merely the college’s opposition to staff getting a CID which has put him out of contention for the lectureship. He also submits emails from July 2018 in which it appears that the subject head is advocating for him though the job was already gone at that stage. The complainant states that the subject head also told him that the respondent considered him over the risk for a CID.
As evidence of the continuing requirement for tuition in his subjects for the 2018-19 academic year, he points to the college’s offer of tutoring hours, made to him on the 17 August by the subject administrative assistant. This was confusing for the complainant as neither the subject head or module coordinator had indicated that such hours were available. These hours were then withdrawn. He was asked on the 23 August 2018 to develop the materials for the module in Databases for the 2018-19 academic year. The new subject coordinator commented on the fact that while the complainant was designing the materials for the course he was not permitted to tutor on the course.
Loss.
The complainant identifies his loss at €20,000 over the coming 2 terms.
The complainant has acquired full time employment since March 2018, working 40 hours a week on a gross monthly salary of €2500. In September the job became permanent and he was increased to €3,350 per month.
Summary of Respondent’s Case:
This complaint is rejected by the respondent.
At the time of the termination of his employment in June 2018, the complainant was employed on a fixed-term contract. That contract expressly excluded the terms of the Unfair Dismissals Act, 1977.
Thus, the allegation of unfair dismissal in breach of the Act is excluded under the terms of the Act.
The complainant commenced working with the respondent on January 19, 2015 in a tutor/demonstrator role. He was a member of the modular staff and issued with a modular staff contract. Modular staff are used by universities to supplement permanent staff. These staff would usually have jobs outside the University. Those modular staff employed in lecturer roles would have a specialised recognised competence in a professional activity obtained after many years’ experience following graduation. They would not be expected to have a PhD to perform the role. For example, the claimant does not have a PhD. The hourly rate for a lecturing role is €75.
Those in tutoring roles tend to have little professional experience and it is common to have this work done by students studying for a PhD. The hourly rate for tutor/demonstrator role is €27.99.
The terms and conditions of employment for a tutor/demonstrator role state
• ‘Exceptional approval’ is required for tutor/demonstrator work if the person is not a registered student.
• The University has an objective to double the number of PhD students. To facilitate this, work as a tutor/demonstrator is made available to such students.
• If a student ceases to be registered as an MA/PhD student then their employment automatically ceases in the role as a tutor/demonstrator.
Complaint’s service history.
The complainant worked as a tutor/demonstrator except for the two periods during which he was employed as a senior teaching assistant for 6 months (1 January – 30 June 2017) and as a lecturer for 6 months (22 January – 30 June 2018).
The respondent submitted copies of the four contracts held by the complainant during the period 4/2/15 – 30 /6/2018 which correspond with the evidence given by the complainant.
In the academic year 2015/2016 he was a tutor/demonstrator in semester 1 and a tutor/demonstrator in semester 2. The claimant earned €2,178 in that academic year.
In 2016/2017 he was a tutor/demonstrator in semester 1 and in semester 2. On January 1, 2017 he also took on the role of a senior teaching assistant on a fixed-term contract basis until June 30, 2017. This occurred because of the teaching remission given to a permanent employee. He earned €2,169 for tutoring, €5,013 on the fixed term contract and also €3,280 for correcting essays/exams in that academic year. A copy of his P60 for 2017 shows a total gross pay of €13,248.
In the academic year 2017/2018 he worked as a tutor/demonstrator in semester 1. On September 11, 2017 he took on the role of senior tutor. Due to curriculum change this module was delivered to twice the normal number of students (i.e. 900 students) which required twice the normal number of tutors. It was then decided to appoint senior tutors who had additional responsibilities including coordinating the work of the other tutors/demonstrators. The senior tutors were paid additional tutorial hours for this work. In the academic year 2017/2018 he was paid €7,150 for tutoring. This level of income reflected the double payment made for taking on the role of Senior Tutor. In addition, he received €5,164 for lecturing work and €821 for correcting essays.
On January 22, 2018 the claimant was offered a fixed-term contract for delivery of lectures in Web Design. It was to replace a module lecturer who could not teach due to illness. The claimant was tutoring on the module and this was the reason he was given the role of delivering the remaining lectures on that module i.e. January to May 2018. The contract terminated on June 30, 2018.
The claimant was initially and mistakenly offered tutoring hours in Data Bases for the academic year 2018-2019. This offer was later withdrawn by the University. The email was sent to the claimant and all other tutors employed in the 2018-19 academic year setting out the slots available. The claimant had responded to this email stating that he was available to work for 5 hours per week. If the claimant had taken up this offer he would have earned €671.76 for tutoring in Web Design and the same amount for tutoring on Databases.
There were no senior tutors appointed as the tutoring requirement on the module was significantly reduced and neither are tutors involved in exam corrections.
Claimant’s Final Contract
This 6-month contract ending on 30 June 2018 contained a clause stating that “The Unfair Dismissals Acts 1977 – 2001 shall not apply to the ending of this contract by reason of expiry of the fixed term period.”
The contract was signed on behalf of the University and by the claimant.
This meets the exemption from the Act set out in section 2(2)(b) of the Act which excludes the application of the Act where
“ the employment was under a contract of employment for a fixed term or for a specified purpose and the dismissal consisted only of the expiry of the fixed term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.”
The claimant was employed as a member of the modular staff principally in the role of tutor/demonstrator. There is no obligation on the University to offer such staff work in the following academic year.
Modular staff are employed to bring their professional knowledge and experience to the University. Such staff normally carry out their professional activity outside the University. This is reflected in the level and diversity of income one can earn each year. These staff would not expect to continue indefinitely in such a role. It is not in the nature of such roles that they be permanent as it would block the opportunities for development of future generations of MA/PhD students.
It is not correct to allege that the University is seeking to cover needs which are permanent in nature with temporary employees. The claimant signed an agreement in relation to terms and conditions of employment for tutor/demonstrator work. This clearly states that the work is temporary in nature and no warranty is given in relation to further employment. There is also a clause that such work may be renewed for up to 4 years and for no longer than this time. This is the normal length of time a structured PhD takes in UCD.
The respondent relies on UCC v Thomas O’Riordan (FTD 1116), where the Labour Court stated, “The Court accepts that it is an entirely legitimate objective of the Respondent to use fixed-term contracts to provide graduates with access to research opportunities and that they are entirely appropriate and necessary for that purpose.”
Thus, it is essential that contracts for such a (research) purpose do not run indefinitely.
The offer of further tutor/demonstrator work was an error made by an Administrator. No offer was ever made to the claimant to do lecturing work in the academic year 2018/2019.
The claimant has alleged that he was not paid for work done in August 2018. However, the claimant submitted a claim for 30 hours pay when the pre-agreed amount was 20 hours. The University has offered to pay 25 hours for this work as a compromise to resolve this matter.
For all of the above reasons the University is requesting that the Adjudicator reject this complaint.
Findings and Conclusions:
I must decide if the complainant can draw on the protection of the Unfair Dismissals Act 1977 in the circumstances of a complaint concerning the expiry of a fixed-term contract, and if so, decide on the unfairness or otherwise of the dismissal.
His fourth fixed term contract of 6 month’s duration expired on June 30, 2018.
His complaint of unfair dismissal rests on the failure of the respondent to maintain him in either of two positions. One of the positions was the lectureship which he had held on a fixed term basis for the period January to June 2018 and which was continuing into the 2018-19 academic year. He was considered but not selected. The process for making such appointments is that the subject head consults with the modular coordinator and makes a choice form those who have declared an interest. However deficient that process might be, it is not sufficient to surmount the provisions of section 2(2)(b) of the Act of 1977. Furthermore, I accept that the offer of a fixed- term contract on 22 January, which expired on 30 June 2018 was for a valid reason – the replacement of a colleague absents on sick leave. The contact signed by the complainant provides this objective reason as the basis for the fixed term contract. The complainant signed a fixed tern contract which expressly excluded the application of the Act of 1977 on the cesser of his employment. Section 2(2)(b) of the Act excludes the application of the Act where
“ the employment was under a contract of employment for a fixed term or for a specified purpose and the dismissal consisted only of the expiry of the fixed term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.”
That the job was continuing does not cancel out the fact that contract signed by the complainant
· was in writing
· states that the Unfair Dismissals Act, 1977 will not apply to a dismissal which occurs only as a result of the end of the contract arriving
· was signed by both employee and employer.
As I do not find that the provision of a fixed term contract on 22 January 2018, following on a fixed term contract for the position of tutor was for purposes of escaping liability under the 1977 Act, as prohibited by the section 3 of the Unfair Dismissals ( Amendment Act) 1993,(aside from the fact that the contract was offered on the 22/1/12018), I cannot find that the failure to renew the contract after its expiry on the 30 June 22018 comes within the ambit of the Act.
The second position which the respondent denied him was the tutoring role, initially offered in August 2018 and then withdrawn shortly afterwards. The complainant believes that the failure to renew the contract as a tutor after the 30 June 2018 amounts to a breach of the Act of 1977.The contracts for tutors and signed by the complainant set out the objective grounds for the fixed- term contract and made it clear that they existed to serve the college’s desire to encourage more students to take up Ph.Ds. and teach at the same time in their field of study. These contracts submitted in evidence also stated that there was no guarantee of future employment. The contract was signed by the complainant excluding the application of the Act of 1977 on the expiry of the contract
I accept that the offer to take up tutoring hours was sent to all tutors working during the 2017-18 academic year. I accept that it was a mistake as the complainant stated he was confused by the offer as he had already been told by that point by the new coordinator that there were no hours for him. I accept that it is legitimate for the respondent to encourage a greater number of students to undertake a Ph.D.- a project assisted by these students gaining knowledge in the field of their study and providing them with an income to maintain their doctoral studies. I therefore accept that the preservation of these tutor/ demonstrator posts with a tenure of 4 years, for students pursuing a PhD albeit with collateral damage for non- PhD students, such as the complainant, is not a ruse to escape liability under the Act. The respondent relies on UCC v Thomas O’Riordan ((FTD 1116). That complaint concerned research students. While the complainant was engaged in work which was ongoing, it appears to be a legitimate and appropriate aim to encourage the uptake of students pursuing a Ph.D. and to facilitate the acquisition of this degree through short- term employment projects.
I find that the Act does not apply to the expiry of the fixed term contracts for tutor/demonstrators.
On the basis of the evidence, I do not find the complaint to be well founded.
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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 do not find this complaint to be well founded.
Dated: 7.5.19
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Key Words:
Unfair dismissal and expiry of fixed- term contract.