Complainant

Respondent

Anonymised Parties

A lecturer

A Third Level Institution

Representatives

SIPTU

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-00021554-001

04/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00021554-002

04/09/2018

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

CA-00021554-004

04/09/2018

The Complainant was a tutor with the Respondent and was informed in May 2018 that tutors employed on a full-time basis cannot be paid for work on a part-time basis which is in addition to their full-time contracts. He claims that he was effectively dismissed as he had not secured his part time hours since 2018.

The Respondent refutes the claim of dismissal made against it. The Respondent was in effect incorrectly paying the Complainant to tutor and to work generally for it, on a casual basis, while he held a full-time role within the public service and was being paid. It claims that this is contrary to the overarching circular governing “one person one salary principle” in the public service.

The following is a summary of the Complainant’s case.

The Complainant was employed on a full-time basis as a lecturer by the Respondent in a series of fixed-term contracts from 19 August 2013 until his dismissal on 31 August 2016. He was appointed assistant professor in another Third Level Institution in September 2016.

He also worked as a tutor with a consortium - the Respondent and other educational bodies - to promote educational opportunities in part time education. This required him to deliver 4 x 2.5-hour tutorials on designated Saturdays and follow up support for students, each year from 2011 until June 2017 before he was given a full-time lecturer post. He said that there was no written contract of employment and no pension contributions made. His earnings fluctuated between €8,000 and €16,000 over that time.

He said that the Respondent had sought and received confirmation from the other Third Level Institution that the Complainant had their permission to carry out this work in both 2016 and 2017.

The Complainant said that he expected to resume tutor duties as normal in August 2018 however in May 2018 he received an email stating that “We have been informed that tutors who are employed on a full-time basis in another public sector body, which includes higher education institutions, under the Department of Education & Skills regulations, cannot be paid on a part-time basis for teaching which is addition to their current full-time employment contracts … I would appreciate if you could inform me whether you are in a full-time post at your institution ...”

He wrote back to confirm that he held a full-time position and sought details of the departmental regulations. He was informed that the consortium had been instructed not to continue to employ him. He asked for the person dealing with the matter but did not receive any more information.

CA-00021554-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The Complainant said that Section 6(7) of the unfair dismissal Act 1977 provides that;

“… in determining if a dismissal is as unfair dismissal, regard may be had …

(a)    to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal …”

He also said that the EAT in Employee v. Employer UD206/2011 found that an employer had not behaved reasonably and accordingly the dismissal was not fair, they cited a number of reasons in particular “1) the decision to make the claimant redundant was taken [on a date prior to the employee being informed of the possibilities of redundancy] and 2) there was no serious or worthwhile consultation with the claimant…”

The Complainant said that the decision to make him redundant was made prior to 21 May 2018 and there was no consultation with him.

CA-00021554-002 - Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

The Complainant said that he was in continuous service as a tutor for seven years and therefore under the Act he is entitled to four weeks’ minimum notice of dismissal, which he did not receive, nor was he paid in lieu of notice.

CA-00021554-004 - Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

The Complainant claims that the Respondent is a public service body and the provisions of all the Public Service Agreements apply. The Complainant said that the provisions of those agreements state that “compulsory redundancy will not apply ... save where existing exit provisions apply.” He claims that no existing exit provisions were ever cited to him and none apply.

The following is a summary of the Complainant’s case.

The Complainant was employed in a number of roles on a full-time fixed term contract from August 2013 to August 2016. He was unsuccessful with regard to his application go for a permanent post in May 2016 and advised that his employment would cease in August 2016 and that he was entitled to redundancy. A subsequent offer prior to redundancy came about which the Complainant turned down. He subsequently took a case under the Industrial Relation Act to the WRC and the Respondent accepted a Recommendation made by the Adjudication Officer for the confusion and distress caused.

The Respondent said that during that time, he continued in his role as a tutor with the consortium with the Respondent and others to promote educational opportunities in part time education. This was a casual employment arrangement and he was paid on presenting time sheets. He was employed at that time in a full-time role with another Education Institutional body.

The Respondent said that on 21 May 2018 the Programme Officer for the programme sent the Complainant an email to outline that all tutors who were employed on a full-time basis in another Public Sector Body cannot be paid on a part-time basis for teaching which is additional to their current full-time employment contract. Confirmation was sought of his current employment situation and he confirmed that he was a full-time lecturer. The Respondent said that it sought the same from a number of other tutors at the same time. The Respondent said that the services of all tutors who confirmed that they were in full time public service employment ceased from that time.

The Respondent said that this instruction was on foot of a circular issued by the Department of Public Expenditure and Reform (DPER) where it states that “where it is proposed that serving public servants undertake other forms of paid remuneration anywhere in the public service the consent of this department will be required” (Reference E 109/247/74).

The Respondent confirmed that the Complainant was not offered any further tutoring hours for the 2018/2019 Academic year due to his fulltime public sector employment contract.

In relation to the claim to dismissal, the Respondent states that the Complainant is not dismissed, his current employment status with it remains as a Casual Employee. He is still on its payroll system, has access to the campus account and email access. He holds another unpaid role with the Respondent. The Respondent said that if the Complainant were to confirm that he no longer holds a permanent full-time position with another Higher Education Institution, it would be in a position to offer him tutoring hours.

In relation to the claim to minimum notice period, the Respondent said that the Complainant was not dismissed and therefore this claim is not proper.

In relation to the Industrial Relations Act 1969 claim, the Respondent said that it has already made a payment of €3,500 to the Complainant for a different but similar dispute for distress and confusion and it cannot approve a further payment for a similar claim.

The Respondent contends that the Complainant was not dismissed but rather that he has alternative full-time employment within the Public Sector and is therefore unable to avail of extra employment in another role as determined by government policy.

CA-00021554-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

And

CA-00021554-002 - Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

The Relevant Law

Section 1 of the Unfair Dismissals Act 1997 provides that:

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

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

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

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

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

I note the evidence from both sides and note that the crux of the complaint rests with the employment arrangements that had been in place between the Complainant and the Respondent. Both parties appear to be consistent with the lack of formality this arrangement had heretofore. There was no contract of employment, there was no set predetermined hours to teach. The Complainants evidence was that the he taught two or three modules per year and that his estimated earnings ranged from “€8,000 to €16,000” per year.

The Respondent said that the arrangement was casual in nature; the allocation and payment of tutoring hours were made by him presenting timesheets.

I note the Complainant has claimed that he was dismissed and not afforded the four weeks’ minimum notice of dismissal, nor was he paid in lieu of notice.

The Respondent has said that the Complainant has not been dismissed. He is currently employed in a full-time capacity by the State in another Public Sector Body and under the principle of the public services “one person one salary” policy he is not entitled to double-pay in a part-time role once he holds a full-time permanent contract.

I am satisfied that the “one person one salary rule” has been in existence for some time and it has only recently been reiterated by the Department of Public Expenditure and Reform. I understand that the tutoring arrangement that the Complainant was under taking under the consortium arrangement was in the nature of public sector employment as opposite to a private arrangement.

I have heard the Respondent’s position that the Complainant has not been dismissed. He remains an employee and once he fulfils the conditions for reassignment to his role within the Respondent, namely he cannot get paid two salaries from within the public sector for his full time and his part roles; it would wish to continue to work with him.

I am mindful that this case was not taken under the Protection of Employees (Part-time Work) Act but rather under the Unfair Dismissal Act and Minimum Notice & Terms of Employment Act and the Industrial Relations Acts. I am satisfied that there is an established practice in the Education sector of employing lecturers on an ad hoc basis to deliver courses in the evenings and on weekends or 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. They are not employees and the Institutions they work in do not consider that an employment relationship exists between them. It would appear that the scenario here had all those hallmarks and may be the de-facto situation, particularly when it relates to a small number of hours; where there is a pay on a timesheet arrangement; when there are no contracts; no benefits were offered or requested; uncertainty in the amount of modules taught from year to year. The relationship is casual, and it suits both parties. I am satisfied those arrangements are not features of a contract of service.

Notwithstanding, I note that Respondent’s clear evidence that the Complainant remains on a full-time employment within the public sector and is bound by the one person one salary rule and will not be paid in addition to that salary for carrying out a part time role and a full-time role simultaneously. I note that the Complainant is involved in other projects within the Respondent, unpaid, and the Respondent said should his circumstances change regarding his full time position it would be in a position to offer him part time hours.

Whilst I do accept that there was a casual employment relationship between the parties in relation to the role which the Complainant undertook as a tutor, I cannot accept that there was any obligation on the Respondent to provide him with this role on an ongoing and indefinite basis. Accordingly, I cannot accept that the sequence of events as described constitute a dismissal of the Complainant by the Respondent. Consequently, it cannot be held that he was unfairly dismissed or that he is entitled to 4 weeks minimum notice as would be provided under Minimum Notice & Terms of Employment Act.

CA-00021554-004 - Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969

With regard to the dispute taken under the Industrial Relations Act 1969, I recommend that the Complainant accepts the decision above, and that both parties keep in close contact regarding future roles and opportunities in their sector.

I find that the complaint under the Section 8 of the Unfair Dismissals Acts, 1977 – 2015 is not well founded.

I find that the complaint under Minimum Notice & Terms of Employment Act, 1973 is not well founded.

I recommend that the Complainant accepts the decision above, and that both parties keep in close contact regarding future roles and opportunities in their sector.

Unfair Dismissals Acts - Minimum Notice & Terms of Employment Act - Industrial Relations Acts – part time lecturer – not well founded.