Complainant

Respondent

Parties

Janyce  Condon

Maynooth University

Representatives

Frank Jones of Irish Federation of University Teachers

Peter Flood  of IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00040374-001

12/10/2020

The case in contention concerns a Music Tutor with Maynooth University who maintained that she had not received a proper Contract of Employment as required by the Terms of Employment (Information) Act, 1994.

She has been employed on an occasional basis since November 2013 and received a CID Contract effective from 1st October 2020. She remains an employee.

Her rate of pay was determined by the number of Students she was engaged to teach and averaged circa € 6,000 to € 7,000 per annum.

It was stated that the Complainant had not been provided with a Contract as specified under the Act. The absence of such a Contract, giving clear terms and conditions, especially as regards minimum Hours of Engagement, places the Complainant at a severe disadvantage particularly if the Hours should be reduced or alternatively additional Hours become available for whatever reason.

The issue of the Max/Min Hours of Engagement was the subject of a reference under the Industrial Relations Act, 1969 which the College declined to agree to.

It was accepted that the Complainant had not received, at the date of the Adjudication Hearing, a formal Contract of Employment. However, the full details of her terms and conditions of employment had been communicated to her by a series of internal communications, letters and e mails all provided in written evidence. She was at no material loss as a result of the absence of the contract.

The issue of Contracts and Terms of Engagement for the Complainant and circa 28 other colleagues in the Department of Music was the subject of ongoing engagement with the Trade Union concerned – the Irish Federation of University Teachers -IFUT.

This process had not yet reached completion.

The Complainant was at no financial or material loss, the overlying issues were in process with IFUT and although technically no contract had been issued there is significant Labour Court precedent especially the landmark Irish Water v Patrick Hall case TED 161 to support the view that merely technical infringements merited no compensation.  The Adjudication case, against the same University, A university Tutor v a University Adj -00020532 also supported the same view.

In summary, as the breach of the Act, as was the case in the precedents cited, is purely technical the case should not be deemed to be Well founded and no compensation is warranted.

3:1         Legal Position.

The complaint is taken under the terms of section 7 of the Terms of Employment (Information) Act, 1994. Section 3 of the same Actis quite prescriptive in setting out the details required in a Statement in Writing that is required to be furnished within 5 days as per Subsection (1 A).

In this case the evidence points to an admitted failure on the part of the Respondent University to follow exactly what is require by the Act.

However, while not a defence, the situation requires an examination of the context and background to the noncompliance.

Labour Court precedents are also instructive in this area.

3:2         Background and Context

The Complainant is employed as an Occasional Tutor, one of some 28, it would appear, in the Music Department.

The employment situation of a very wide range, estimated to be in the range of 2000 approx., of what could be best called Non-Standard employees in Universities has been the subject of extensive discussions beginning in 2018 between the Representative Bodies, Unions, College Managements both singly and collectively and the overall parent Department, the Department of Education and Science.

The process has been slow and now further dogged by the Corvid restrictions. In Adj-00020532 involving a quite similar situation within the same University some detailed background was also provided. In this context the situation in ADJ-00020532 was characterised as

“The evidence pointed to the fact that this situation was not a malign act on the part of the Employer but was more reflective of a largely ambiguous almost chaotic situation in all Universities regarding the employment of Occasional Staff. The IFUT/Universities regularisation process was reflective of a need to take control and regularise the situation across some 1,400 staff. From the evidence presented it was clear that the main terms of the employment were clear at all times. The Irish Water v Patrick Hall TED161 case and the de minimis rule cited by the Employer are persuasive authorities.

It was clear from the evidence that almost all the terms and conditions of employment were known and communicated, albeit in a quite haphazard manner, to the Worker”.

In the current case the situation is almost ad idem. The Act has been breached by the University but not in any malign manner and the terms and conditions of the Complainant are well known to her.

The issues she has in dispute are more of a direct Industrial Relations nature and may well stray into the remit of the Employment (Miscellaneous Provisions) Act ,2018.

There is an ongoing University Sector wide process with IFUT and the Colleges in this whole area. This complaint, while technically valid, has best to be seen in this context. This Collective process is where the solution lies.

3:3        Conclusions.

The Complaint CA-00040374-001 is Well Founded and merits a compensation award. However, in view of the overall Collective Context and Labour Court precedents quoted viz Irish Water v Patrick Hall TED161 case and the de minimis rule any award has to be symbolic. It should also act as an encouragement to the Collective Parties to conclude central discussions.

Accordingly, a compensation sum of € 768, being, following the evidence, the per annum fee for teaching one student, is awarded.

Technical Breach of Terms of Employment (Information) Act, 1994, Occasional Work in University.