Complainant/Worker

Respondent/Worker

Anonymised Parties

A University Tutor

A University

Representatives

  Self-represented

 College Management

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-00026862-001

06/03/2019

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

CA-00026862-002

06/03/2019

The issues in dispute concern a University Tutor and her University. She alleges, firstly, that she did not receive a proper written contract of employment as per the Terms of Employment (Information) Act, 1994. Secondly, it was alleged that she did not receive a proper Contract of Indefinite Duration and thirdly was placed on the incorrect salary scale. The Worker maintains that she should be awarded financial compensation for losses incurred due to the Employers failure to address these issues.

While disputed, the Worker first commenced employment with the University in September 2007 to August 2013 and again from September 2015 to September 2020.

Her rate of pay and the methodology of determination varied (and was disputed) but was based for calculations on the University Tutor hourly rate which was €23.86 per hour in September 2019.

It is important to note that the Employer, the University, pointed to Section 13(2) of the 1969 Act, the Body of Workers clause, as effectively precluding a Recommendation on many aspects of this individual Worker case.

1:1      Terms of Employment (Information) Act, 1994   CA-00026862-001

When initially presented at the March 2020 hearing the Worker had not received a Contract of Indefinite Duration (a CID) and had never at any time, during her service, received a formal written statement of her employment terms.

While it was accepted that a CID had been offered to her by the Employer in May 2020 it was still deficient and ambiguous as to the precise terms of employment and the rate of renumeration.

The Employer is clearly in breach of the Terms of Employment (Information) Act, 1994.

1:2        Industrial Relations Act, 1969    CA-00026862-002

There were three disputes, under this heading, initially referred to the March 2020 hearing

A.      Non-Receipt of a CID

B.      An incorrect Salary Scale proposed

C.       Compensation for losses incurred.

A:           Non-Receipt of a CID

In March 2020 a CID had not been received by the Worker. However, by May 2020 a CID had been issued. This CID contained many issues needing clarification but by the time of the resumed Hearing in December 2020 many of these clarifications had not been forthcoming or were unsatisfactorily ambiguous. The dispute remains active.

B:           An incorrect Salary Scale proposed

The CID proposed a basic Tutor rate of pay for the Worker. However, she believes that, based on the documentary evidence adduced & well accepted Custom and Practice she is entitled to the Senior Tutor rate of pay. The CID proposed the 6th point of the 7-point Tutor scale backdated to December 2018 with the suggestion that “once entered into the Payroll System” a further increment would automatically follow.

It was also advanced that her former varied earnings were not properly considered in determining her rate of pay which clearly should have been at Senior Tutor rate.

A further issue arose over the exact methodology of determining her hours of work. The CID offered was based, she alleged, on a 0.5 FTE Term Time contract as opposed to a 0.375 Contract which was more in keeping with the University’s own Policy for the Engagement of Tutors. The Employer had not satisfactorily addressed this apparent contradiction.

In addition, there were Pension and Holiday queries/ ambiguities regarding the CID as proposed.

C:         Compensation for losses incurred.

Essentially the Dispute here, when first referred, concerned the difference between the Tutor rate (€23.86 per hour) and the Senior Tutor rate (€29.63 per hour) backdated to September 2017. The loss of pay was estimated to be in the region of €10,500. The Worker maintained that her salary calculation arguments were supported by other Academic colleagues and extensive examples cited of clear former Custom and Practice

The Worker was at the loss of due Employer Pension Contributions, Holiday and Sick pay for the same period. This was unquantified but, by any reasonable estimates, a substantial sum.

The Worker, furthermore, alleged that the Employer had, unnecessarily, been obdurate, in producing proper earnings / salary certificates to assist her in getting a home loan resulting in her having to remain in rented accommodation longer than necessary.

Finally, a financial recognition of the Stress and Emotional hardship the entire process had taken on her was also required.

It was also important that her case be seen as a landmark for other Occasional Staff and Tutors regarding the precarious conditions of their employment and the dilatory approach of the Employer to seeking a proper resolution of disputes that had a major impact on individual workers.

2:1     Terms of Employment (Information) Act, 1994   CA-00026862-001

The Employer pointed out that, at all times, the Worker concerned had been fully aware of her Terms and Conditions. She had been initially employed in 2011 by a local Management arrangement in the Language Centre and all correspondence showed that the College had kept her fully informed. All essential elements of the terms and conditions had been provided. A detailed table of Core Terms of Employment and the Employers position was provided in evidence. In relation to Sick pay, and or Pension Schemes, these had never been features of the positions occupied and as such were never communicated.

It was accepted that a Formal Written Contract of employment had never been issued, prior to the CID in May of 2020. The Employer, while accepting this error, argued that the Worker had never been at any material loss or detriment.  The headline case of Irish Water v Patrick Hall TED161 was cited in support of the Employer position.

In summary the Spirit of the Law had been observed by the Employer and any deficiencies in a lack of a formal contract were so minimal as to be insignificant. The de minimis rule was cited as further support.

No compensation is warranted.

2:2       Industrial Relations Act, 1969    CA-00026862-002

There were three elements to this dispute, namely the lack of a CID, an incorrect Salary Scale and a compensation claim.

2:2:1     Opening Jurisdictional Argument.

The Employer cited Section 13(2) of the Industrial Relations Act, 1969

13:(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

The argument essentially being that the dispute involving the worker here has broader implications and impacts on a wider body of workers (commonly accepted as being three or more workers) and as such is outside the Juridistiction of an Adjudicator.

In Oral evidence both at the March and December 2020 Hearings the broader industrial relations situation concerning the varied and ambiguous employment status of Workers, like the Worker in this case, in the University concerned and other universities was discussed. The principal Trade Union involved, IFUT, had concluded an agreement in 2019/2020 on what could be called a Process of Examination & Regularisation of these positions. In the Employments concerned some 1,300 to 1,400 positions had to be examined and regularised. This was not a small task and consumed a significant amount of managerial time.

The break between the March Hearing and the December Hearing had, at the suggestion of the Adjudication Officer, allowed significant engagement with the Worker concerned. A CID had been issued on the 25th May 2020 and the Salary Point, Tutor or Senior Tutor had been discussed. The key point from the Employer was that all these issues had been part of the IFUT /Universities process and as such were clearly “body of worker” matters.

Notwithstanding this argument the Employer advanced the following specific arguments regarding the three elements of the dispute.

2:2:2     Lack of a CID

This had been addressed between the March and December hearings. A CID had issued on the 25th May 2020

2:2:3     Incorrect Salary scale.

The Employer cited the IFUT/Universities agreements regarding assimilation and salary scales when CIDs are issued. To alter this unilaterally in favour of the Worker would cause major IR issues with other staff and the Trade Unions involved. Sanction from the Department of Education would not be given.

2:2:4      Compensation for losses.

The Employer did not accept the validity of the Dispute and as such could not see where any claim for Compensation arose.

In any event the Worker had resigned from the Employment in September 2020, so the claim is now largely moot.

3:1        Overview

This was an unusual case in that the matters initially referred to the Hearing in March 2020 (from a first lodging of the dispute on the 6th March 2019) had substantially evolved by December 2020. The interim period had been usefully employed on intensive local discussions, as suggested by the Adjudication officer letter of the 3rd March 2020.

The Worker was at December 2020 no longer an employee of the College. In her written submission to the December hearing she stated that she was now pursuing her case

“so that other Occasional Tutors can make more informed decisions about their continued employment in precarious conditions in the sector and to understand that there is no legal obligation on the University to implement their own policies, or to actively engage in bringing closure to disputes.”

As this Dispute is under the Industrial Relations Act,1969 a certain latitude regarding a possible settlement is afforded to the Adjudicator in forming his Recommendation.

 I will proceed on this basis.

Nonetheless it is still necessary to deal with the strict legalities of the dispute.

3:2       Terms of Employment (Information) Act, 1994   CA-00026862-001

It was accepted that no formal Written Contract had ever issued to the Worker. 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.

None the less the Act was breached and in keeping with Section 7 (2) (a) of the Terms of Employment (Information) Act, 1994 the Complaint must be deemed “Well Founded”. Under Section 7(2)(d) of the same Act a compensation award  

“of such amount that the Adjudication officer considers just and equitable having regard to all the circumstances but not exceeding four week’s renumeration”

 is merited.

Having considered all the evidence a Compensation sum of € 592.60 is awarded – (this being the Senior Tutor Rate of €29.63 by 20 hours.)

3:3      Industrial Relations Act, 1969    CA-00026862-002

The opening Employer legal argument regarding Section 13(2) of the Industrial Relations Act, 1969 has merit. The Worker concerned here was one of some 1,400 staff across the universities and a such the “Body of Worker” argument is valid.

It follows that the disputes in this case as regards the CID, Salary Point and Compensation are outside of the jurisdiction of an Adjudication officer.

The arguments advanced at the December 2020 Hearing, (Employer being in effect grievously dilatory in pursuing an individual settlement of the Worker’s case), as quoted above is a slightly different matter. Taking the exceptional times of Covid 19 into account and having read the correspondence the evidence did not point to a grossly dilatory approach from the Employer. As such a Recommendation for some form of individual redress would not be warranted.

Terms of Employment University Tutors, Written contract of employment – failure to provide, Contract of Indefinite Duration, Assimilation to Salary Scales.