Complainant

Respondent

Anonymised Parties

University tutor

University

Representatives

  Self

Peter Flood Ibec

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-00032340-001

19/11/2019

The complainant was a full-time PhD student at the respondent university from September 2013.   He graduated and was awarded his PhD on 31 October 2018. He claims he was a tutor/lecturer with the respondent between 2013 and 2019. He claims he was unfairly dismissed on 02 September 2019. His annualised salary in 2018/19 was €22880.00 gross. The complaint was submitted to the Workplace Relations Commission on 19 November 2019.

The respondent stated the complainant was employed on one contract of 9 months duration, from 01 September 2018 to 31 May 2019. The contract was to provide cover for a permanent employee who was on maternity leave. The respondent submits that as the complainant had less than 12 months service he is not covered by the terms of the Unfair Dismissals Act, 1977 and he has no standing to bring this complaint.

The complainant was a PhD student at the respondent university from September 2013. He graduated and was awarded his PhD on 31 October 2018. He states that in addition to the tutoring he did as part of his PhD course he was first employed on an occasional basis in the academic year 2013/14.

2013/14

The complainant was in receipt of a scholarship valued at €5000.00 plus an additional €3000.00 for tutoring but he also worked additional hours for which he was paid. He was paid for this work using the occasional academic pink slip claim system. The payment was arranged by his head of department at the end of the academic year 2013/14 because he had worked many additional hours in the year. The total payment in 2013/14 was approximately €1300.00.

2014/15

During the academic year 2014/15 the complainant was away from Ireland on a research project as part of his PhD course. The experience he gained while out of Ireland was of benefit to the respondent. The research project continued into the academic year 2015/16.

2016

The complainant returned to Ireland in April 2016 and commenced tutoring and lecturing while continuing with his PhD course of study.   He was teaching less hours than normal for him, but he resumed working with the students he had worked with before going abroad on his research project. The complainant asserts this demonstrates continuity of employment.

2016/17

The complainant stated he was guaranteed two hours teaching per week in the academic year 2016/17. However, he stated that he did a lot more work than two hours per week, most of which was unpaid. He stated that most of his work this year was unpaid, and he was not paid during breaks such as reading week, Christmas, Easter and public holidays.   The complainant submitted a letter, dated 02 November 2017, issued by the HR department, which confirmed he was employed as a tutor on a temporary occasional basis.

The complainant stated he had finished his PhD in October 2017, reflecting the four-year programme. He graduated on 31 October 2018.

2017/18

In 2017/18 the complainant stated that his teaching work increased significantly, and he had a minimum of 8 contact hours (class hours) per week. The complainant stated he was working full-time but was only being paid for the time he was in class, that is contact hours. He claimed payment for his hours worked using the pink slip claim system. He was also able to claim Jobseekers payment as his work hours were allocated over three days of each week. He asserts that the ability to claim Jobseekers payment demonstrates his status as a PhD student was not linked to his employment with the respondent. The complainant stated that he did a lot of work during this year for which he did not receive payment. Such work included class preparation, exams, corrections of assignments and administration.

The complainant became very frustrated with these working conditions. In his view the department was heavily dependent on a group of full-time workers who were being classed as ‘occasional’ staff – long-standing teachers who had no written contract whatsoever. He contacted his head of department to explain that he could not make ends meet and that he wanted his own written contract of employment based on his history and the extent of the work he was doing.

His head of department advised him that a colleague was taking maternity leave in the academic year 2018/19 and he could apply for a contract to cover her period of leave. He applied and was appointed as a temporary part-time employee commencing on 01 September 2018. The contract was to terminate upon the colleagues return from maternity leave, expected to occur on 31 May 2019.

2018/19

In the academic year 2018/19 while employed on the temporary part-time contract, which was stated to be providing replacement cover for his colleague, the complainant said he continued to carry out his own full-time role with the same groups of students. He had taught the same students their core modules in first year and was now progressing with them into second year.

In addition to working his contracted hours the complainant stated he was regularly asked to do extra lectures.     Payment for the extra occasional hours worked was through the pink slip claim system. He was also asked to cover lectures for which the only payment possible was book tokens, he declined this work. The complainant stated that the contract he was given in 2018/19 did not reflect the work he did.

Towards the end of the 2018/19 academic year, the complainant again spoke to his head of department about his employment status.   He was not keen on returning to an entirely hourly-paid position for the following academic year. He was commended for the quality of his work and his overall reliability. The head of department advised him that the colleague on maternity leave was intending to go from maternity leave to parental leave and she advised him that he might continue occupying her contract.

Another temporary contract was not what the complainant wanted, he wanted his own contract as in reality he asserted he was not really covering for the colleague on maternity leave. He submitted a formal request to HR for a contract of indefinite duration. The complainant stated that he felt things began to change after he submitted his request for a contract of indefinite duration. This request was refused. The complainant received an e-mail from the Employee Relations Manager of the respondent on 28 May 2019 confirming that his temporary contract would end on 31 May 2019.

On 15 July 2019 the complainant received notice that as his engagement with the respondent ended on 31 May 2019 his IT user account would be deleted. He contacted his hear of department to request that the account not be deleted as it contained a lot of important information. In her reply she updated the complainant on the position of his colleague who had been due to take parental leave. The said colleague now intended to return for semester 1 and take parental leave in semester 2. The complainant was offered the possibility of replacing her in semester 2. He replied accepting and requesting occasional hours in semester 1, as an absolute last resort.

2019/20

Being aware that the university is slow to produce timetables he accepted that he would have to wait a couple of months to get confirmation of his new schedule of hourly paid teaching for the academic year 2019/20. Shortly before classes were due to start in September 2019 the complainant was informed that he would not be given any occasional hourly paid work. The complainant stated that other colleagues, who were relatively new and less well qualified, were given hourly paid work.   When he queried this, he did not receive a clear response. The reason given for his dismissal was that the department’s needs had changed.   The complainant claims he was dismissed on 02 September 2019.

The complainant stated that he believes he was dismissed because he spoke out against exploitative conditions in the university. The complainant was offered a very short fixed-term contract for the second semester of 2019/20, but he did not accept that offer.

The complainant claims he was an employee from 2013 and should have been offered a contract of indefinite duration. He claims he was unfairly dismissed on 02 September 2019 and he should be offered a contract recognising the nature of the work he did or a fair redundancy payment.

The respondent rejects the claim that the complainant was unfairly dismissed. He was employed on one contract for nine months, to cover a permanent employee who was on maternity leave. The respondent submits that as the complainant has less than twelve months service he is not covered by the terms of the Unfair Dismissals Act, 1977.

The complainant began a four-year full-time PhD course in September 2013. He did a small amount of tutoring work while studying for his PhD, but he was not an employee of the respondent as the work was an integral part of post graduate training.

2013/14

During the academic year 2013/14 the complainant was the recipient of a scholarship. He was the recipient of different scholarships between 01 October 2015 and 30 September 2017. Recipients of scholarships and/or PhD students are not employees of the respondent. The respondent submitted details of the scholarship awarded in 2013/14 which provided a sum of €5000 and a further €3000 for duties in conducting tutorials, marking or similar. The complainant was advised that should he choose not to accept the duties he would receive the scholarship of €5000 but not the additional €3000. The complainant agreed to the duties specified and did receive the additional €3000.

The respondent submitted a copy of the Revenue Commissioner Scholarship Exemption Declaration Form, signed by the complainant on 02 August 2015, which contains the complainant’s statutory declaration confirming that “there is no element of servicer (directly or indirectly) between the sponsor and I or between the college/university and I”. That declaration covered the period 01 October 2015 to 30 September 2017

2014/16

The complainant was abroad for eighteen months between 2014 and 2016 carrying out research as part of his PhD course.

2017/18

Whilst studying for his PhD the complainant did some teaching work. This work was connected to his status as a PhD student. In the period 01 February 2017 to August 2018 his teaching work averaged four hours per week. Such work is typical of PhD students in Ireland and is given so they may gain valuable teaching experience and improve their employability after completing their studies. There is no competition for such work and it is not deemed ongoing once the individual’s studies are completed.

The complainant submitted his PhD on 28 August 2018 and graduated with a PhD from the respondent university on 31 October 2018.

2018/19

Following a competition, the complainant was offered and accepted a specified purpose contract to cover for a permanent employee for the period of that employee’s maternity leave. The part-time and term-time contract commenced on 01 September 2018 and was due to end on the permanent employee’s return from maternity leave, expected to be 31 May 2019. During the nine months the complainant worked an additional ten hours in total to provide short-term cover due to unforeseen circumstances, such as sick leave.

In July 2019 the complainant was offered and accepted the opportunity to cover the period of parental leave for the employee whose maternity leave he had covered. The parental leave had initially been planned for semesters 1 and 2. However, the other employee changed her request to take parental leave in semester 2 only (January to May 2020). The complainant asked to be considered for occasional hourly paid work in semester 1. He was informed that it could not be determined what hours would be available until closer to the start of term in September.

On 02 September 2019 the complainant was informed by e-mail that as the departments teaching needs had changed there were fewer occasional hours available and therefore he could not be offered any hours in semester 1. The complainant contacted the Head of School claiming he had not been employed to cover maternity leave and stating he had been working in the department since 2013. This ignored the terms of his specified purpose contract and the fact that he was a postgraduate student on a full-time course. The Employee Relations Manager of the respondent wrote to the complainant on 03 September 2019 informing him that following the cessation of his specified purpose contract the respondent university was not in a position to offer him employment at that time.

The Head of School informed the complainant on 05 September 2019 that the department was unable to offer any occasional hours in semester 1.

2019/20

By letter of 23 January 2020 the complainant was offered a temporary contract as a tutor. The contract was for the specific purpose of covering another employee’s parental leave in semester 2 (01 February to 13 May 2020) until the of the said leave.   The complainant requested material changes to the contract and did not sign it by the required date. On 07 February 2020 the respondent withdrew the offer as the complainant had not accepted it within the stipulated timeframe.

Legal Submission

The complainant was employed on a specified purpose contract for nine months. It is submitted that he was not an employee in relation to the tutoring work he carried out as a student, prior to his specified purpose temporary contract.

It is submitted that for an employer / employee relationship to exist there must, as a minimum, be and obligation on the employer to provide work and on the employee to perform that work on request. If there is no mutuality of obligation, then no contract of service can be deemed to exist between the parties.

The complainant was a full-time postgraduate student in receipt of scholarships. He made a statutory declaration confirming he was not an employee while in receipt of his scholarships. During the time he was a postgraduate student there was no obligation on the respondent university to offer him work and he was not obliged to accept any work offered. The complainant commenced his course in September 2013 and graduated on 31 October 2018.

The respondent relied on the following cases to support the submission that there must be mutuality of obligation between the parties for a contract of service to exist. Brightwater Selection (Ireland) Limited v Minister for Social and Family Affairs [2011] IEHC 510 in which the Court referred to the UK case, Nethermore (St. Neots} Ltd v Taverna and Gardiner (1984 IRLR 240) in which mutuality of obligation was described as: “… a continuing obligation on the employer to provide work and pay and a continuing obligation on the employee to do the work provided.” The Court also referred to Carmichael and Leese v National Power plc (1999 WLR 2042). The respondent also relies on the decision in Minister for Agriculture and Food v Barry & Others [2008] IEHC 216 in support of the submission that if there is no mutuality of obligation present then there is not a contract of service.

The respondent submitted a series of e-mails between 2017 and 2019 to show that the complainant had at times rejected or accepted work offered. The respondent submits that these e-mails make it clear that the respondent university was not obliged to offer the complainant work and that he was not obliged to accept any work offered. Therefore, it is submitted that no mutuality of obligation existed between the parties and this no employer / employee relationship existed.

Summary

The work done by the complainant whilst still a student does not make him an employee and he made a statutory declaration to Revenue that he was not an employee while in receipt of his scholarships.

No mutuality of obligation existed between the parties and the complainant was not an employee while studying for his PhD. The complainant was not obliged to take up work offered and in fact, on numerous occasions, he turned down work offered.

The complainant was employed on a temporary part-time contract for nine months. As he had less than twelve months continuous service with the respondent he has no locus standi under the Unfair Dismissals Act, 1977.

CA-00032340-001

Complaint of unfair dismissal under Section 8 of the Unfair Dismissals Act, 1977.

The complainant claims he was unfairly dismissed from his employment. The respondent submits that the complaint did not have twelve months continuous service and therefore cannot maintain a claim under this Act. With certain exceptions, an employee must have at least 52 weeks’ continuous service with the employer before he can claim unfair dismissal.

Section 2 of the Act provides:

This Act shall not apply in relation to any of the following persons:

(a)    an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him

Therefore, the first point I must decide is whether the complainant has the required continuous service with the respondent. The complainant was employed on a part-time specified purpose contract commencing on 01 September 2019. The specific purpose was stated to be “providing replacement cover for a member of staff for the duration of her maternity leave”. The contract was due to terminate upon the expiry of the specified purpose, which was expected to occur on 31 May 2019.

The Employee Relations Manager of the respondent, by e-mail dated 28 May 2019, confirmed to the complainant that his employment would end on 31 May 2019, in line with the stated terms and conditions of his employment. The complainant would not have standing to bring a claim of unfair dismissal if his continuous service was just nine months. However, the complainant claims to have continuous service as an employee of the respondent from 2013 to 2019.  

2013/2018

The complainant was a full-time PhD student at the respondent university from September 2013. His course of study was structured over four academic years, 2013/14, 2014/15, 2015/16 and 2016/17. He completed his thesis and submitted his PhD on 28 August 2018 and graduated with a PhD from the university on 31 October 2018.

Between 2013 and 2017 the complainant was the recipient of scholarships which had certain terms attached. The first scholarship for the year 2013/14 provided an award of payment of fees plus a maintenance sum of €5,000 and a sum of €3,000 for university activities in the form of tutorials, marking or similar. The additional €3,000 was subject to the complainant agreeing to conducting tutorials, marking or similar activity for his department.   The complainant had a choice not to accept these duties. He chose to accept these duties and received the additional €3,000. I am satisfied that the tutorials, marking and similar work done by the complainant 2013/14 was associated with his scholarship and was work done as part of his course. I find that he was not an employee of the respondent in that year.

The complainant was abroad for eighteen months between 2014 and 2016 carrying out research as part of his PhD course. I am satisfied that during this research period the complainant was not an employee of the respondent.

The complainant was the recipient of another scholarship which covered the period 01 October 2015 to 30 September 2017. In accepting this scholarship of €16,000 p.a. the complainant made a statutory declaration to Revenue stating the following:

-          he was a full-time (40 hours per week) student on a structured PhD course with the respondent university,

-          there was no element of service (directly or indirectly) between the sponsor and the complainant, of between the university and the complainant,

-          the scholarship did not arise from an office or employment (directly or indirectly) with the sponsor or with the university.

I am satisfied that any work done by the complainant, during the period of his scholarships, was associated with his course of study and his scholarships. This work did not arise from a contract of employment with the respondent. I find the complainant was not an employee of the respondent between 01 October 2015 and 30 September 2017.

The respondent acknowledged that during the period 01 February 2017 to August 2018 the complainant did some teaching work on an occasional basis, for which he was paid at an hourly rate. The respondent stated that such work was related to the complainant’s status as a PhD student and that such work is given so that students may gain teaching experience and improve employability after they complete their studies. The respondent asserted that there is no obligation on the respondent university to provide such work and equally there is no obligation on the student to accept such work.

The complainant stated that in the academic year 2017/18 his workload increased significantly.   He claims he was teaching a minimum of eight contact hours (class time) per week and that he was not paid for all the tasks he performed. The complainant stated that he had finished his PhD in October 2017. At the hearing he confirmed that he graduated in 2018. I note from one e-mail, provided by the respondent, that the complainant’s Viva was arranged for 25 January 2018. I am satisfied that the complainant was completing his PhD course in 2018. The respondent acknowledges that the complainant’s work averaged four hours per week during this period but, submits there was no obligation on the respondent to offer such work nor was the complainant obliged to accept any work offered. The respondent provided copies of e-mails from 2017 and 2019 where the complainant accepted work offered and at other times declined work offered.

Mutuality of Obligation

The High Court has held that mutuality of obligation between employer and employee is an essential component of an employment relationship. In Minister for Agriculture v Barry & Others [2009] 1 IR 215, 203-231, Edwards J held:

“‘The requirement of mutuality of obligation is the requirement that there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer. If such mutuality is not present, then either there is no contract at all or whatever contract there is must be a contract for services or something else, but not a contract of service.

It was characterised in Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612 at p 632 as the “one sine qua non which can firmly be identified as an essential of the existence of a contract of service.” Moreover, in Carmichael v National Power plc [1999] ICR 1226 at p 1230 it was referred to as “that irreducible minimum of mutual obligation necessary to create a contract of service”.

Accordingly, the mutuality of obligation test provides an important filter. Where one party to a work relationship contends that that relationship amounts to a contract of service, it is appropriate that the court or tribunal seized of that issue should in the first instance examine the relationship in question to determine if mutuality of obligation is a feature of it. If there is no mutuality of obligation it is not necessary to go further: whatever the relationship is, it cannot amount to a contract of service. However, if mutuality of obligation is found to exist, the mere fact of its existence is not, of itself, determinative of the nature of the relationship and it is necessary to examine the relationship further.” 

In McKayed v Forbidden City Ltd t/a Translations.ie [2016] IEHC 722 Ni Raifeartaigh J concluded that the mutuality of obligation as a fundamental requirement for the existence of a contract of service was established as a matter of Irish law. In that case it was held that the plaintiff’s contract did not guarantee him work from the defendant and that the fact that he had always been provided with work did not amount to an obligation on the defendant to continue to do so.

I accept the evidence of the complainant that he did significantly more work for the respondent in the period between September 2017 and August 2018 than previously. It is clear from an e-mail, 09 August 2017, that the complainant, then approaching the end of his scholarship on 30 September 2017, wanted work to tide him over until he got a post-doc or a job. I am satisfied that whilst the respondent did offer the complainant work on an occasional basis between September 2017 and August 2018 there was no obligation on them to do so. Equally, while the complainant requested work he was not obliged to accept any work offered. Therefore, as there was no mutuality of obligation between the parties there was no contract of employment that could establish continuous service in that period before his specified purpose contract commenced on 01 September 2018.  

I am satisfied that the only continuous employment the complainant had with the respondent was during the period of the specified purpose contract, that is from 01 September 2018 to 31 May 2019. As the complainant’s continuous service with the respondent was for a period of less than one year the Unfair Dismissals Act, 1977 does not apply, as provided in Section 2 of the Act. I find the complainant has no standing to bring a complaint under the Unfair Dismissals Act.

CA-00032340-001

Complaint of unfair dismissal under Section 8 of the Unfair Dismissals Act, 1977.

I am satisfied that the only continuous employment the complainant had with the respondent was during the period of the specified purpose contract, that is from 01 September 2018 to 31 May 2019. As the complainant’s continuous service with the respondent was for a period of less than one year the Unfair Dismissals Act, 1977 does not apply, as provided in Section 2 of the Act. I find the complainant has no standing to bring a complaint under the Unfair Dismissals Act.

Unfair Dismissal

Continuous Service

Locus Standi

Standing to bring complaint