ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00022730

Parties:

	Complainant	Respondent
Anonymised Parties	Lecturer	College

Representatives

Aidan Kenny Teachers' Union of ireland

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00029442-001	03/07/2019

Date of Adjudication Hearing: 21/11/2019

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The Complainant has been employed by the College as a Lecturer. The Complainant’s dispute relates to the employer’s practice and procedure regarding the allocation, distribution and scheduling of academic programmes, modules and timetabling issues related to the Complainant’s academic work including discipline areas and professional practice. There are two key issues for consideration and recommendation namely 1) allocation of hours within his home school department and 2) his attendance at Course Board meetings.

Summary of Complainant’s Case:

The Complaint is employed by the Respondent since 1996 and has a wholetime permanent academic grade contract of employment as Lecturer (the terms of this grade are the subject of a nationally agreed contract of employment for the sector).

The employment contract requires the Complainant to teach 16 hours per work for the academic terms and attend to associated duties such as, assessment, examinations, course development, participating in committees, research, consultancy, and development work. The Complainant has taught on numerous programmes. The Complainant carries out his full range of duties and has participated in academic committees at department, College and institute level.

The nationally agreed grievance procedure for the College sector details the principles and stages that should be followed were a grievance is pursued. The Complainant with representation from the local union branch progressed the grievance through the informal part and then the formal stages in pursuit of a fair and reasonable resolution:

· Stage 1, meeting with local management, 14 December 2018, no resolution

· Stage 2, meeting with management 14 January 2019, no resolution

· Stage 3 meeting, with senior management, 15 February 2019, agreed resolution

· Stage 4, pending this WRC Adjudication hearing

When it became obvious to the Complainant that the Respondent would not implement its own decision and agreement which was reached at Stage 3, the Complainant requested the union to refer the matter to the Workplace Relations Commission, Adjudication services as a Stage 4 individual grievance.

The Complainant’s concerns emerged in June 2017, the management changed the allocation of his weekly teaching hours, this included; no allocation of teaching hours in the second semester, changes to teaching subjects (modules) and no allocation of teaching hours within his home department in the College.

The Complainant considered there was a change in timetabling allocation with reference to his teaching hours. The Complainant had a normal expectation that teaching hours would be allocated, and he would be timetabled as was the previous experience, receiving the full weekly teaching allocation of 16 teaching hours per week for each academic term. However, management reduced the teaching allocation in semester 1, changed subjects and allocated zero teaching hours in semester 2.

The Complainant communicated his concerns to the local manager the Head of Department, who had made the teaching hours allocation decision. The Complainant tried to seek a resolution to the matter however, there was no resolution achieved. Under protest, the Complainant followed the management decision. The Complainant found it very difficult attending to work with no assigned teaching hours for Semester 2, academic year 2017/18. The Complainant considered management’s decision was unfair and that it was putting his professional academic career at risk. The issue was causing the Complainant concern, worry and anxiety.

In 2018/19 academic year, management continued to impose the disputed timetabling practice and allocation of hours, the Complainant was allocated hours outside his own department and received no teaching hours for Semester 2. He alleges management continued the practice of under timetabling and allocating hours in other departments and this was a cause of great upset, anxiety and, stress to the Complainant. The Complainant considered management was using the teaching hours allocation to exclude him from his home academic department. This practice by management was impeding the Complainant from fulfilling his duties under contract. The Complainant considered it undermined his professional practice.

The Complainant felt he was been excluded from his home department, this exclusion was causing difficulties with normal professional relationships with colleagues and students. As the Complainant was excluded from home department subjects (modules) he could not have the same academic relationship and discussion with colleagues in the department. The Complainant felt isolated from his department and colleagues as he was removed from the normal work streams and teaching allocations.

In that year 2018/19, the X module was running for the first time and in the Complainant’s home department. The Complainant was the sole author of this module (and two further/subsequent connected/follow on modules), the Complainant had a legitimate expectation this module would be allocated to him for Semester 2 and pursued the issue via correspondence and a pre-grievance meeting. However, from the local engagement the Complainant became of the opinion that management were deliberately excluding him from his home department.

The Complainant requested the local branch of the union to lodge an individual grievance. The grievance progressed through the Stages 1 and 2 with no resolution. The grievance was progressed to a Stage 3 grievance with senior management. The Stage 3 meeting decision by senior management was accepted as a reasonable resolution to the individual grievance by the Complainant. The local union branch informed senior management of the acceptance, subject to implementation.

For the 2019/20 academic year the Head of Department sent the Complainant his teaching hours allocation (19 June 2019) and it:

· did not honour the agreed Stage 3 decision principles

· contained a derisory home department allocation

· did not contain modules that he had developed

· contained a (5 hour) module that was subsequently removed without explanation on the Friday before classes commenced in September 2019

· contained a module (X) that he was not remotely qualified to deliver (since removed)

· did/does not constitute a fair allocation and lacked any consultation

The Stage 3 decision (February 2019) provided: “The Institute accepts that staff assigned to a particular department should be facilitated in attending any meetings where departmental developments are discussed”. The stated the minutes of the Course Board meeting of 14 June clearly included Course development discussions on X and X and Complainant was neither notified nor invited to this meeting, which should have been/was essentially a Department meeting.

The complainant alleges not only did management fail to honour the Stage 3 agreement in relation to teaching allocation, it also exacerbated the Complainant’s grievance by continuing to exclude him from his home Department meetings.

The Complainant became aware that local management were allocating teaching hours (which he could teach) to part-time and fixed-term staff who were less senior then him. Local management were paying others to do work he could do and were allocating him reduced hours and zero hours in the second semester. At a time when the institute was in acknowledged financial difficulties with cut-backs imposed, the local management would not utilise the Complainant’s full contractual teaching hours and instead paid others to do the work.

The Complainant deemed that the Stage 3 agreement with senior management was not been implemented in good faith by local management who were ignoring the terms of the agreement and failed to put in place the measures. The Complainant found this position to be totally disingenuous and requested that the matter be referred as a Stage 4 – with the Adjudication by Workplace Relations Commission.

The Complainant’s email of 14 June to the Head of Department states:

I was expecting to see X, Year 4, X to be on my allocation as I have taught this module every year since 2009 and I understand this stream will be running in 2017/18. You might provide me with reasons/explanation as to why it is not on my allocation.

Mostly startling of all about my allocation, is that you have not allocated me any hours in Semester 2. Surely a redistribution amongst lecturers is possible?

The Complainant’s evidence/correspondence in relation to 2018/19 allocation outlined the Complainant’s email of 3 December 2018 to the Head of Department which stated:

I find the response most unsatisfactory and have delayed my reply in anticipation in receiving a teaching allocation for the second semester by now. Surely, I’m entitled to module/workload allocation on an equal basis as anyone else within the department and College. No reason has been given to me for the non-allocation of modules/teaching. I am concerned that the non-allocation amounts to, ostensibly, exclusion and I am asking my union TUI, to pursue a grievance on my behalf.

Complainant’s email of 11 September 2018 to the Head of Department states:

Further to prior correspondence and discussions, I write to reiterate my eagerness to deliver “X Module”, which may be due for reallocation, in Semester 2. I note that no modules have yet been allocated to me for Semester 2.

The Complainant’s email of 11 June 2018 to the Head of Department states:

I am aggrieved with a Zero allocation for Semester 2 for the second consecutive year. In particular, I consider that X Module, which I wrote, should have been allocated to me. Additionally, if it's running, I would expect to be delivering X Module as previously and as part of the family of X modules.

Having read the “Procedures for the resolution of grievances/disputes" Section 5 "Informal Resolution of Grievances" and Section 8 "Individual Procedure, Prior to invoking the Individual Grievance Procedure", I request an early "pre-Grievance" meeting with you to attempt to resolve the matter. I will be accompanied by my TUI representative.

Complainant’s email of 31 May 2018 to the Head of Department states:

I’m not at all happy to have Zero allocation for Semester 2 for the second consecutive year. I'd much prefer to have a full workload.

In particular, I expected to be allocated X Module, which I wrote. My understanding is that we are planning to offer the X Stream to incoming Year 2 students and this module is an elective for Y2 X. It is very closely related to the Y3, Introduction to X Management and Y4, X Management, which I also wrote and expect to deliver in due course.

I also understand from earlier today that X X X Stream may be offered next year and this would include X Management, which is usually delivered in Semester 2. If it's running, I would expect to be delivering the X Module as previously and as part of the family of X Management modules.

Please include and confirm X Module in my Semester 2 allocation and I would welcome an allocation of further suitable/appropriate modules for Semester 2.

Appendix 8 of the Complainant evidence/correspondence in relation to 2019/20 allocation

Complainant’s email of 19 June 2019 to the Head of Department states:

Firstly, I must raise my concerns and deep dissatisfaction at the late receipt of my allocation so close to the summer holidays and given that we commence teaching early in September.

More importantly, however, the allocation does not reflect or honour the Stage 3 Grievance outcome that I accepted in good faith would be implemented:

Response to stage 3 individual grievance (Complainant) decision, received on 27th February 2019.

TUI, on behalf of the Complainant, would like to acknowledge their acceptance of the decision given at Stage 3 of his individual grievance. We are pleased to see that the employer accepts the Complainant’s wish to have a proportionate allocation of hours in his ‘home’ department, his reasonable expectation to being assigned at least some of the associated lecturing hours of modules he has developed and that a fair approach should be adopted when assigning modules both within own department and other departments.

These principles outlined in the decision as accepted by the employer were previously denied to the Complainant and while it is welcome to see that these principles are now accepted by the employer what remains absent is a plan to ensure their implementation for the Complainant.

No hours have been allocated to me in the X Department in Semester One and I have not been assigned any of the associated lecturing hours of modules I have developed. X Module and Intro to X Module, which are both running in 2019/20, were solely developed by me but not allocated to me. The course in X module is not a sufficient allocation within my home department for me. This is the third successive year that I have had an unacceptable allocation.

I will look at the new modules allocated and revert with any issues. On first reading, I would consider that I am in no way qualified or competent to deliver the X Policy contents (c.50%) of X Policy.

I ask, once again, that X Module and X Module be allocated to me forthwith and I confirm that I will continue to pursue my grievance through my union, TUI, and assume that this will now go to Stage 4.

The Complainant considers management’s continued unfair treatment of him, and the deliberate reduction in teaching hours, allocations of hours to other departments, and allocation of hours to other staff less senior, has caused the following:

Impeded his employment contract and his right to work.

· Excluded him from his home department, colleagues and students.

· Displacement from main place of work/office.

· Loss of trust in management and the employer and their ability to treat him fairly.

· Ongoing anxiety and stress, even during the summer holiday period.

· Vulnerability to Rightsizing/Downsizing, the institute is in financial difficulties.

· Sense of being targeted, punished, disciplined, unfairly and without proper cause and due process.

· Has damaged his academic professional career.

· Is undermining his professional identity and academic standing with peers and students.

· Has removed from his core duties from December 17 to September 18 by being excluded from lecturing in the second semester.

In consideration of the case and management’s failures and actions, the Complainant is requesting the Adjudicator rule in his favour and issue a decision to include the following:

· Formal confirmation from the Respondent that it will fully implement the Stage 3 agreement and will instruct local management to adhere to the terms of the agreement.

· The allocation of full teaching hours for both semesters, and specifically in subject areas where he is qualified to teach including modules that he has developed and others such as, for example Introduction to X.

· Being invited to attend Course Board meeting in his Department and subject area.

· A fair and reasonable financial compensation for damages caused to the Complainant over the period of three years by the institute’s actions.

Summary of Respondent’s Case:

The Respondent stated the Complainant is employed as a full-time Lecturer in the area of X within the X. A full time Lecturer is contracted to teach for sixteen (16) hours per week in addition to other duties.

The Respondent stated that in December 2018 the Teachers Union of Ireland (the “TUI”) raised a grievance on behalf of the Complainant. The grievance related to a lack of hours in semester two, hours not being allocated within the complainant's home department and not being allocated hours for modules the complainant developed. The grievance was heard at Stage 1, 2 and 3. The stage 3 decision was accepted by the TUI on behalf of the complainant on 4 March 2019. The summary of the decision is set out below:

“the Respondent acknowledges the Complainant’s acceptance that lecturers do not have “ownership” of individual modules, but accepts his wish to have a proportionate allocation of hours in his “home” department;
“the Respondent notes that the Lecturing contract does list duties other than teaching and cannot accept that work done outside of teaching duties is done on a “voluntary” basis”;
“a number of lecturers in areas where there is a surplus of teaching hours have been assigned other duties in lieu, following consultation”;
“the Respondent accepts that the Complainant has developed a number of new modules for the revised X degrees and is entitled to have a reasonable expectation to being assigned at least some of the associated lecturing hours as these modules are rolled out”;
“the Respondent accepts that where a surplus of staff/teaching hours emerges within a department, a fair approach should be adopted when assigning modules, both within own department and other departments”;
“the Respondent accepts that staff assigned to a particular department should be facilitated in attending any meetings where departmentaldevelopments are discussed”.
The Respondent stated that following the Stage 3 decision the College addressed all of the items related to the Complainant’s grievance.
In 2009/10 the Department had X registered students, by 2016/2017 the student numbers had fallen by almost 70% to X students.
In 2016/17 the Department completed programmatic review which resulted in changes to programmes. Programmatic review occurs in all departments, generally every five years, and is undertaken by the team of lecturers on the programme. As a result of this programmatic review, a number of modules were discontinued and work placement was introduced in semester two. Whilst this is a positive step in the students’ experience, it also had the effect of reducing the number of lecturing hours in semester two, as students are on work placement instead of in the classroom.
The decline in student numbers and completion of the programmatic review has had a significant impact on the number of lecturing hours and as a result the department has been overstaffed for a number of years.
The Respondents stated that in an effort to reduce the overstaffing issue, a number of staff in the X Department have been fully or partly seconded to other non-lecturing duties or projects. The remaining staff service the X Department and other departments within the College (i.e. service out hours). However, even with these initiatives, the College continues to be overstaffed by approximately 10 staff members.
At present close to 50% of all hours allocated to staff in the department come from other departments within the College.
The College and Department have a number of initiatives in place to grow student numbers, achieve sustainability and growth, as well as contributing to all other strategic goals, including teaching and learning, research and innovation, fellowship and inclusivity etc.
As a result of the College and Department’s efforts, student numbers have improved slightly in the last few years with the current student numbers for this academic year.
The Respondent stated that during the grievance hearings, the Complainant stated he was being deliberately excluded from the department and this was the reason he did not have hours in his home department in AY 17/18 and AY 18/19 and no hours in semester two for AY 17/18. The Respondent stated the Complainant was not deliberately excluded, the reduction in his timetabled hours is as result of significant reductions in student numbers and changes made to the programmes.
The Respondent stated the Complainant’s hours were accessible from 2009/2010 to 2019/2020. The issues which gave rise to the Complainant’s grievance, occurred in AY 2017/2018 and AY 2018/2019 when his hours reduced considerably.
The Respondent stated that in 2016/2017, the year prior to the grievance issues, the Complainant had 17 hours in semester one and 9 hours in semester two, totalling 13 hours across the year. Of the six modules taught by the Complainant in AY 2016/2017, five were not available for timetabling in the following years. This was due to the modules being discontinued and not required in the subsequent years.
In the current academic year 2019/2020, only one of the sixteen lecturers in the department have a full teaching timetable (i.e. 16 hours).
Close to 50% of the lecturing hours in the department arise from servicing other departments. Evidence showed that fourteen staff have hours outside their home department this year. The evidence also shows there are four staff members with no hours in their home department in either one or both semesters, the Complainant included.
The lecturing staff in the department are of different disciplines. In the Complainant’s discipline, there are two other lecturers with similar skill sets. All three lecturers are significantly under timetabled. Of the three lecturers, two, including the Complainant, have no hours in their home department in one semester this year. The Complainant has no hours in his home department in semester one of this year (i.e. September 2019 to January 2020). His colleague, who lecturers in the same discipline area, has no hours in their home department in semester 2 (i.e. January to August 2020). Two other Colleges in different disciplines have no hours in their home department in either one or both semesters.
The Respondent stated if the Complainant was being deliberately excluded, the data should show no other staff member has been fully serviced out of the department. This is not the case. A staff member in the X Department had no hours in their home department for two years in a row (AY 15/16 and AY 16/17) and had no hours in one semester in AY 17/18. This staff member’s hours were shown in the evidence supplied.
The Respondent stated the decline in student numbers across the College has had a significant impact on staff timetables. Whilst it would be uncommon across the College for staff to have no lecturing hours in one semester unfortunately, in recent years, due to the significant reduction in student numbers it has occurred for a number of staff in the College. For example, in this academic year, a number of staff within the College will have no lecturing hours in one semester. It is also worth noting that of these staff, the majority of them have no hours in their home department and we foresee this pattern continuing in the future if student numbers do not increase.
The Respondent stated the data provided shows the Complainant is not being singled out for exclusion and other staff have and continue to be timetabled out of their home department in an effort to utilise staff as far as possible, with a number of staff also having no lecturing hours in one semester.
The Respondent stated one of the issues raised by the Complainant in the grievance was that he felt excluded and isolated from the department as a result of having no hours in his home department. The Respondent stated as part of this grievance resolution and as discussed during the Stage 2 grievance we recommended the Complainant becomes involved in the many initiatives being worked on by staff in the department, in an effort to improve student numbers, some of which he has been involved within the past and we committed to a follow-up meeting with the Complainant to discuss the initiatives open to him. The Head of College followed up with the Complainant after the Stage 2 grievance, but he declined to meet to consider involvement in the initiatives. The Respondent stated as recently as this Academic Year, the Head of College suggested to the Complainant that he nominate himself onto a Sub-committee of the Academic Council of which he is a member. He declined this opportunity.
The Respondent stated the Complainant received his provisional allocation for AY 19/20 on 19 June 2019. All staff within the department received their allocation over the course of a few days around this date. The Respondent stated the Complainant provisional allocation was for 13 hours in semester one and 6 hours semester two with an indication of a further module in semester two.
The Respondent stated that a series of emails between the Complainant and the Head of Department took place between 1 June 2019 and 10 September 2019.
The Respondent stated in the emails from the Complainant to his Head of Department, he raised issues with a number of modules being assigned to him including X Policy and X statement analysis. In the X Policy, he stated he was not qualified or competent to deliver the module whilst also stating that he did work in the industry. On the X module, he stated it was unlikely he would be able to apply and relate to the "X" and another lecturer would be better suited. On the other module, he stated he had considered this module but felt it should be delivered by a lecturer in accounting.

The Respondent stated a separate issue which arose during the grievance related to the Complainant attendance at meetings where departmental development is discussed. The Complainant has been invited to attend development meetings within the Department on a number of occasions over the years, some of which he has attended. Emails were sent to all staff in the department regarding departmental meetings.

The Respondent stated the College is going through an extremely challenging time with significant loss of student numbers and consequently a reduction in lecturing hours. The Respondent stated the role of the Head of Department is to utilise staff as far as possible and to ensure as far as possible that lecturers are timetabled. The department in which they lecture is not relevant especially when the department is so overstaffed.

However, the College has strived to resolve the Complainant grievance to the best of its ability and has made changes to the Complainant and other staff members timetables to accommodate the Complainant’s requests where possible.

In addressing the Complainant’s grievance the College has:

Allocated hours in both semesters (8 hours semester one and 6 hours semester two).
Allocated hours in a module he developed.
Allocated hours in his home department.
Continued to include him in all departmental development meetings.

The Respondent stated it is clear from the data provided that the issues raised by the Complainant are not individual nor isolated, but as a direct result of a significant reduction in student numbers affecting a number of staff across the College.
The data shows:

Staff members other than the Complainant had and continue to have no lecturing hours in one semester;
Staff members other than the Complainant have no lecturing hours in their home department.

The Respondent stated whilst it is not ideal that the Complainant is currently only working half his time, it is not as a result of any deliberate exclusion, but as a direct consequence of a significant student reduction. The Respondent stated in contrast the Complainant has not engaged in initiatives within the Department which would provide further involvement for him within the department and in turn, would assist the College in growing student numbers.

Findings & Conclusions:

It was explained that the Adjudicator knew the parties and were asked if any had objections and no objection was raised. I therefore proceeded on this basis.

The Complainant does have an obligation to exhaust the internal process before taking the matter to an external source. The Labour Court in Rec INT 1014 stated, “The Court is not prepared to insert itself into the procedural process in a situation where the dispute resolution procedures have been bypassed”. The Complainant has fulfilled that obligation and therefore the Complainant is entitled to have the claim under the Industrial Relations Acts heard and a recommendation issued.

The Union representative stated they reached internal resolution to the Complainant’s grievance in February 2019 at Stage 3 of the internal grievance procedure. This however, was not upheld so the Complainant referred his complaint in line with Stage 4 of the process to the WRC accordingly for resolution. The HR Manager stated they implemented the agreed Stage 3 grievance outcome that was agreed by all parties. All parties agree that they agree output of Stage 3 process agreement.

The crux of the issue is that the parties differ in their view as to whether it’s been implemented fully and fairly or equitably. There are two key elements to this dispute 1) the Complainant’s inclusion on course boards and 2) the allocation of the clients 16 hours within the College and his home department. I will address both accordingly.

The key elements of the Complainant’s grievance centres on the exclusion of course boards, is a key concern for the Complainant. Conflicting evidence by the Respondent representative and the Complainant witness as to the appropriateness, policy and custom and practice regarding this process. The Complainant also feels very aggrieved that he hasn’t been allocated hours to teach on subjects he’s been involved in developing rather than subjects he wasn’t competent in; rather than give part time staff teaching hours he could teach. The communication between the Complainant and his Line Manager has been via email instead of verbal communication which would be much more proactive and collaborative. It has also been very late giving him timetables and information.

The Respondent stated the course board meetings are only relevant to those specifically teaching on that course and there is a procedure for this. “The membership of each Course Board shall consist of all the academic staff teaching on the relevant courses”. Student performance is discussed at these meetings. Everyone in the department is invited to the department meetings including the Complainant. The Complainant and representatives say that is not the case reference course boards in practice they attend.

It is accepted by the Adjudicator that due to limited students and surplus resources based on the evidence presented this is the reason for the challenge in allocation teaching hours.

The Respondent confirmed the Complainant has 8 hours currently lecturing which won’t be there next semester, some hours are in home department. For the next semester he will have 6 hours including hours in home department. The College say they have 3 hours in home department for the Complainant in 2020 academic year for Year 4 of the course (X stream of the course).

The College reported there are some new courses coming on stream, so the Complainant will have 3 hours in home department at minimum and there is the likelihood there will be more than this. Based on the Respondents submission currently the Complainant should have more hours, going forward to ensure equity.

However, I recommend these hours need to be allocated by the College in his home department and cannot be “cherry picked” by the Complainant, however, his competence in delivering same must be taken into account and I recommend he would be given preference for modules he was involved in developing which would be normal practice, however, only to maximise number of hours comparable to colleagues within the department and home hours.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

Based on the oral and written evidence presented by all parties the current situation has reached an impasse to culminate in the WRC involvement. To remedy this, it is important that normal face to face communications resume between the parties outside of just email. I therefore recommend engaged meaningful communication with the Head of Department i.e. Line Manager of the employee reference suitable modules he’s competent to deliver and based on availability of hours allocate fairly and equitably between his home department and outside department.

However, it is then for the Head of Department to allocate the work accordingly as there are other lecturers, course requirements etc to be considered in allocating his hours.

I also recommend that the employee receive a comparable number of hours for his home department and the outside departments as to his colleagues based on the analysis continuing to be done by the HR Manager going forward for future semesters.

I also recommend that the employee be invited to attend the department development meetings but not the course board meetings and instead the attendees of the course board meetings continue as per the policy regarding same. This policy however, then needs to be enforced consistently to ensure equity and fair same treatment of all throughout the institute, and that is considered to be taken as the case by the Adjudicator based on the evidence presented at the hearing.

Dated: 14th February 2020

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Key Words: