Complainant

Respondent

Anonymised Parties

A Language Assistant

A University

Representatives

SIPTU

IBEC

Act

Dispute Reference No.

Date of Receipt

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

CA-00035042-001

04/03/2020

This case concerns the complainant’s teaching hours and how her grievance was handled in the respondent’s internal processes.

The complainant says her workload was increased in retaliation for raising industrial relations issues, and contrary to the terms of her contract, and her dignity at work undermined, in particular in the course of one specific meeting.

She says she was not given a fair objective hearing by the respondent and that it has not adhered to its own Grievance and Procedures Policy in processing the grievance.

(Cases under this legislation continue to be anonymised).

The complainant works as part of a group of language assistants and language instructors who have been in a dispute with the respondent regarding the lack of incremental pay scales for their positions.

In 2016, after a year and a half of union involvement, the respondent agreed to a first meeting on the matter on May 14th, 2018.

At this meeting, the employees were asked to send their contracts to HR. A second meeting took place on the June 12th, 2018, after all four staff members had done so.

Following this a decision was made to increase the complainant’s teaching duties, stating that she ‘has to teach 8 hours’ from now on, although the complainant’s contract defines her teaching duties as ‘upto8hours’.

The complainant arranged to discuss the matter with her manager on September 24th, 2018, who denied that there had been victimisation due to the pay claim, a point the complainant had not even made at that stage.

Her manager went on to explain that ‘up to eight hours’ for her meant having to teach eight hours.

The complainant stated that others had their teaching duties decreased at the same time. In the course of what followed her manager became aggressive and raised her voice and demanded to whom she was referring.

The complainant was upset by this behaviour and had to leave the office immediately.

Between November 9th, 2018, and May 8th, 2019, there were meetings and correspondence with Professor A and then Professor B.

In the meeting with Professor A (November 9th, 2018), the complainant tried to explain that the motive for increasing her teaching duties was her involvement in the claim for incremental pay scales, and therefore amounted to victimisation.

In a letter on November 26th, 2018, Professor A claimed that “the explanation for the increase of her teaching hours is based on a need for a workload model   which should be based on a prior assessment of actual and current workload of the staff member involved”.

She based the need for the increase of teaching hours on a workload model of the complainant is unaware.

The complainant wrote to HR in December 2018, reaffirming her claim of unfair and unfavourable treatment in the form of a change of her workload, and repeating her claim of victimisation.

According to the respondent's Grievance Procedure Policy, the case was supposed to be  referred to a HR Partner or the HR Relationship directorate at this stage.

However, the complainant was invited to speak to Professor B, and she did so on January 31st, 2019. Despite his clarification that he was not a HR Partner, (the next step in the respondent’s own procedure) the meeting went ahead.

On February 26th, 2019, Professor B stated that he was hearing this matter as ‘another appropriate person’ under ‘stage II of the Grievance Procedure Policy’.

His letter ends by explaining that should the complainant be dissatisfied with the outcome of this stage, she may refer it ‘in accordance with Section 4 of the respondent Grievance Procedure Policy’, thereby denying the complainant stage III/Section 3 of the Grievance Procedure Policy:

 ‘If having raised the matter with your manager, or the next level, you are dissatisfied, you may present the grievance in writing to the respondent HR which will be referred to either to the relevant HR Partner or the HR Relationship Directorship’.

He did not highlight the Dignity at Work policy or recommend that the matter should be pursued following the meeting and in his letter from 26th February 2019, he did not uphold the complaint that there was any poor treatment of the complainant by her manager, the Head of School.

The complainant wrote to HR complaining about the conclusions and a response was sent on May 8th, 2019, addressing the complaints.

No minutes were ever provided from these hearings, no formal statements were ever taken and when pressured to allow the case to be heard through the formal grievance procedure, the respondent HR refused to.

At this stage it was clear that the respondent had no intention of affording the complainant the right to a fair hearing and the case was referred to the WRC for adjudication.

The union does not contest the respondent’s right to ask the complainant to teach “up to 8 hours”, as per her contract. However, “up to 8 hours” does not mean “have to teach 8 hours” and that the Head of School was incorrect in her assertion that it does.

We submit that the complainant was victimised by the Head of School for her involvement in the collective case and ask for a finding that the complainant was treated unfairly, that her dignity at work was undermined  by the way her Head of School spoke to her when she raised the issue, and that the respondent acted unreasonably and in contravention to her rights as well as its own Grievance Procedure Policy when they failed to give the matter a fair hearing in line with their own policies.

The complainant is alleging that she has been unfairly treated when she was asked to work an extra teaching hour per week, that this was connected to her involvement in a collective claim on behalf of a number of colleagues.

She also says that her Head of School screamed at her at a meeting at which she was informed she would have to work an additional hour per week. She alleges that all of this was done at the behest of her Head of School. These claims are rejected.

All these complaints were investigated and found to be without merit.

The complainant is employed as a language Instructor. The job description makes specific reference to a requirement to work ‘up to 8 hours teaching per week’.

The job description was implemented following a Rights Commissioner recommendation that resulted in a significant increase in pay for the complainant.  

In2018theadditional teaching hour arose because the person who had previously taught this hour had moved to take on other work. Given that the capacity existed within the school to take on this extra hour the Head of School was not prepared to seek the services of an external person to teach this hour.

The work of conversational hours was not inappropriate for the complainant. It is part of the normal role within the School of both Instructors and Academic staff.

On September 24th, 2018, the complainant met with the Head of School, and was informed she was required to teach an additional hour because, if she did not do so, the school would have to hire extra staff at extra cost to cover this hour.

On October 16th, 2018, the complainant set out her grievance in writing. She alleged that she was victimised when requested to teach an additional hour as this was connected to discussions on a pay-related matter.

However, the complainant and her work colleagues were represented by SIPTU at these discussions and there was no representation made by SIPTU that she was victimised for her involvement in these discussions. These discussions went toconciliationinJanuary2019.

The process remained in conciliation until August of that year. Furthermore, there is no reference in this letter to the Head of School 'screaming' at her during the meeting on September 24th, 2018.

On November 9th, 2018, the complainant met with Professor A, to discuss the matters raised in her letter of October 16, 2018.

Again, the issue of the alleged 'screaming' by the Head of School was not referred to at this meeting.

On November 26, 2018, Professor A issued her findings on the complainant's grievance. (Copy of findings submitted).

She concluded that the Head of School, had to maximise the resources available to her and when reviewing employees' contracts, the complainant's contract provided an additional one hour  i.e. up to 8 teaching hours set out in her job description.

Whilst two colleagues had their class contact hours reduced there were good reasons for this.

It was deemed appropriate to allocate the conversational class to the complainant as she had no  associated preparation or exam time and it was also in line with the terms of her contract of employment.

The allegation that the complainant was victimised for participation in pay-related issue was rejected given the justification for requesting her to take on the additional teaching hour.

On December 18, 2018, the complainant appealed Professor A’s conclusions to HR.

In her appeal letter the complainant stated that no proper engagement took place with her on the change to take on an additional teaching hour and that she had been victimised because of her participation as part of a group of 4 other workers in discussions on career progression and salary scale.

The complainant's appeal was heard by Professor B who met with the complainant on January 31st, 2019.

The issues were that it had been ‘inappropriate’ to request the complainant to teach conversation class given her role, experience and qualifications, the disputed hour was not required operationally, the necessity of offering the conversational hour on a Friday was disputed and the complainant was victimised for involvement in a collective claim

On the first point, thecomplainantbelievedthatthishourcouldbeprovidedbysomeonelessqualifiedandexperienced, but Professor B concluded that the needs of the School required this conversational hour to be provided and that it was not inappropriate to ask the   complainant to undertake the conversational hour as part of her 8 student-facing hours.

The University was obliged to avail of its own internal capacity rather than simply seeking the services of an external person at extra cost.

On the second point, Professor B concluded that the additional hour enhanced the educational experience and supports the students in the school. Thus, there was no legitimate reason that this conversational hour should not be provided by someone qualified to provide it.

Thirdly, the complainant did not normally work on Fridays although she was a fulI-time member of staff.

The timetable on a Friday for the conversational class was set from the beginning of the year and there was no evidence of any motive for asking the complainant to undertake the conversational hour on a Friday other than the operational needs of the School.

The complainant alleged that the additional hour was allocated to her on the foot of being involved in a collective claim.

Professor B concluded that it was standard practice for a Head of School to inform a Head of Subject how many contact hours they have available in their area in order to meet the timetabling requirements of the subject.

He concluded that the request to make one additional teaching hour per week was reasonable and had been made on the foot of the objective needs of the School. He could find no evidence of victimisation.

These findings were issued on February 26th, 2019.

The complainant was informed that if she was dissatisfied with the conclusions reached by Professor B that she could refer the matter in accordance with Section 4 of the Grievance Procedure.

OnApril17th,2019, SIPTU said that her grievances had not been resolved and questioned   whether the complainant's involvement in a previous collective IR issue impacted negatively on her standing and that she felt victimised.

The respondent replied on May 8, 2019. In this letter stating that there was no evidence of victimisation of the complainant or that the Head of School behaved in an unprofessional manner towards the complainant.

  No referral to the WRC was made concerning her grievances until March 4, 2020.

There is no evidence that the instruction that the complainant to take on one additional class contact hour was in response to her involvement in a collective issue.

Her grievance pre-dated the conciliation process that involved the complainant and 4 other workers. There was never an allegation made during the conciliation process (which ran from January 2019 to August 2019) of any  victimisation of the complainant.

The complainant is a full-time employee. She referred a dispute on pay in 2011 and a Rights Commissioner issued a recommendation.

The University did not appeal that recommendation. Following that recommendation, the complainant was issued with a job description which stated that her role involved teaching up to 8 hours per week. Requesting the complainant to take on a one-hour class contact hour was within the terms of what was agreed as part of her job description given that she was teaching 7 hours per week in 2018.

The complainant is a full-time employee and was not asked to take on hours beyond her contracted hours.

The University did not act unreasonably in requesting the complainant to take on the class contact of one hour per week. The School required the additional hour, and the complainant had the skills and capacity to do this work.

The Head of School had reviewed all contracts of employment in the School to ensure all academic staff were meeting but not exceeding their contractual commitments. The request for the complainant to work the additional hour was within the terms of her contract.

The complaint that the Head of School 'screamed' at the complainant is rejected. This was not stated   in her grievance letter of October 16, 2018. Even the SIPTU letter does not use this terminology.

Victimisationisan extremely serious allegation to make against a work colleague. Consequently, a high burden of proof is required to substantiate such an allegation.

The onus is on the complainant to demonstrate that her involvement in a collective issue in2019wasconnected to the decision to require her to take the class contact hour in dispute.

The complainant must prove that 'but for' her involvement in the collective issue she would not have been asked to teach the class contact hour.

The conciliation process was in 2019 whereas the request to take on the additional class contact hour occurred in 2018. There were at least 3 conciliation meetings chaired by the WRC between January and August 2019 and there was never any allegation made by the union on behalf of any worker of victimisation for involvement in pursuing that collective grievance.

For all the above reasons the University is requesting that the Adjudicator reject this complaint.

In the summary of her case for the complainant, the following appears.

‘The union does not contest the respondent’s right to ask the complainant to teach “up to 8 hours”, as per her  contract. However, we ask you to find that “up to 8 hours” does not mean “have to teach 8      hours” and that the Head of School was incorrect in her assertion that it does.’

To describe this assertion, in the context of the somewhat extraordinarily detailed case which has been made here, as bewildering would be putting it mildly.

In the first place, by any common understanding of its normal meaning in the English language, ‘up to’ eight hours, includes eight hours.

Although such phrases will sometimes be expressed as ‘up to and including’ it would be preposterous in the current context of a workplace dispute to argue that the failure to add ‘and including’ somehow diminishes the meaning of ‘up to’ and any ensuing entitlement to require performance of eight hours.

To so argue, and for example to suggest that it might permit seven hours and thirty minutes, or other lesser period but not eight hours, is to enter the realms of the ridiculous.

That the complainant and her union felt a case could be constructed on such a fragile proposition is surprising and that they continue to do so three years after the event is evidence of a lack of perspective and proportionality which is no less surprising.

Because this, if not quite entirely, then almost entirely undermines the entire basis of the case. Of course, the respondent may decide not to exercise its right to require an employee to teach eight hours, but on the basis set out it has the right to do so once it decides there is a need to do so.

But moving to the second strand of the case, I will consider the allegation that the motive for the change was one of retaliation for raising an industrial relations matter.

Of course, as a purely theoretical proposition it is possible that to require a person to undertake something which would otherwise be reasonable or normal could, in certain extreme circumstances constitute unfair treatment.

One would have to look at the nature of that work, any disparity in the treatment of co-workers in the same regard, and the reasons for doing so.

An example might be found if an extremely unpleasant task, which a person is unfairly and selectively assigned to carry out in clear retaliation for some legitimate assertion of their rights, or perhaps workplace agreements.

Unfortunately for the complainant, she falls short of meeting the terms of any such theoretical proposition by quite some distance.

In addition, her claim that the alleged detriment was an act of retaliation was fully investigated and found to be groundless.

It might be thought that having fallen so far short of establishing the basis of her complaint that this might lead her to consider her position, at least for the purposes of this hearing. However, it did not do so.

She proceeds with a highly technical complaint about alleged breaches of the respondent’s internal grievance procedure.

Again, the facts are set out above. The grievances were investigated by two senior members of the university’s academic staff, both of them at professor level and occupying senior administrative posts, and one of them a lawyer.

In addition, and for reasons that were not explained, Professor B issued his report in February 2019 and the complaint was not referred to the WRC until March 3rd, 2020. The incident complained of took place sometime after June 2018.

To seriously suggest that some basis for a complaint before the WRC may be grounded in a failure to comply with a minor technical provision in the Grievance Machinery provides further evidence of a lack of proportionality and insight about the entire matter.

This is especially the case when this alleged technical failing is associated with a claim that it resulted in a failure to give the complainant ‘a fair hearing’.

On the contrary, Professor B set out a detailed reasoned set of findings on the four grievances in his letter of February 26th, 2019.

It will not suffice to challenge the fairness of the process on these facts and that it should have been heard by someone else, or that this deprived the complainant of a fair process, as a result, in the absence of a more substantive alleged breach of fairness.

No such alleged breach has been disclosed.

It is not just a matter of interest, but highly significant, that one of the issues, the alleged shouting by the complainant’s Head of School, which properly lies within the Dignity at Work Framework, has never been the subject of an appropriate complaint (although there was some suggestion that Professor B should have suggested that she do so).

And yet she sought a first instance finding from the WRC that she was victimised.

To do so as a first instance matter, as the complainant’s union well knows, would be in breach of all jurisprudence and practise of the Adjudication Service and the Labour Court in respect of complaints under the Industrial Relations Act.

In conclusion, what began life in 2018 as an issue over the requirement to work an extra hour has now grown into a grievance that is out of all proportion to its actual significance.

The complainant’s grievance as presented here is without foundation as the increase in her hours lay within the terms of her employment contract and no evidence has been successfully adduced that the motive for increasing them was anything other than operational.

It has been fully investigated at the level of her workplace to a good standard of fairness by the respondent.

There is nothing further to be done and it is time she put the matter behind her.

I so recommend.

For the reasons set out above I do not uphold complaint CA-00035042-001 and it is dismissed.

Disciplinary processes.