Complainant

Respondent

Parties

Niamh  Keely

University Of Limerick

Representatives

  Self- Represented

Muireann McEnery , 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-00036032-001

06/05/2020

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

CA-00036032-006

06/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00036032-007

06/05/2020

The Complainant filed her complaint with the Workplace Relations Commission on 6 May 2020  as against the Respondent.

The hearing was conducted remotely in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

The Complainant and one witness, Ms Yvonne Delaney, from the Respondent swore an affirmation at the outset of the hearing.

The Complainant’s complaints are as follows:-

(1)         She received a statement of my core terms which deliberately contained false or misleading information pursuant to Section 7 of the Terms of Employment (Information ) Act 1994 (CA-00036032-001)

(2)         A second complaint that she received a statement of my core terms which deliberately contained false or misleading information pursuant to Sections 7 of the Terms of Employment (Information ) Act 1994 (CA-00036032-006)

(3)         She as a part time employee who has been treated less favourably in respect of her conditions of employment been treated less favourably than a comparable full-time employee pursuant to Section 16 of the Protection of Employees (Part Time Work) Act 2011. (CA-00036032-007)

In the submissions filed by the Complainant there are complaints relating to annual leave and income tax matters. These matters are not properly before me and therefore, my decision is limited to the three complaints set on the Complaint Form of  6 May 2020 only.

The Complainant described herself as a Casual/Hourly Paid Lecturer who commenced employment on 22 January 2015 in the Kemmy Business School.

She is paid an hourly rate of €67.60 as stated on the most recent payslip of 21 December 2017 provided.

CA-00036032-001

The Complainant gave evidence that she did not received a contract of indefinite duration (CID). She received a contract in 2015 and again in 2020.

She referred to clause 2.3 of the contract dated 15 January 2015 wherein it states: “From time to time the University of Limerick requires staff on an hourly / casual basis. Your employment with the University of Limerick shall be for the purpose of carrying out the duties of hourly paid staff as assigned by the Head of Department/Line Manager … and is subject to hours being available and the necessary funds available in your assigned department’s budget. The continuation of your employment is dependent on availability of hours and funds. Your employment will terminate in the event that hours or funding is no longer available. This contract will not lead to a contract of indefinite duration as it is not a permanent position.”

The Complainant states she has worked with the Respondent since signing this 2015 contract. She further submits that there is no end date on this contract and accepts its not a fixed term contract as there is no fixed duration. She continues in her submission to state that it is a CID as it has no end date. She seeks confirmation that her contract is a CID from the Respondent and that it “fulfils all duties to the employee, in light of this CID contract.”

CA-00036032-006

It is the Complainant’s case that she received a statement of her core terms which deliberately contain false or misleading information. She refers to the Purpose Duration and Termination Clause of her contract od 15 January 2015.She submits there is no end date in the contract. She states that  the contract states this is not a contract of indefinite duration, but she has been an employee for over 5 years.

CA-00036032-007

The Complainant gave evidence that she has been treated less favourably than a full time Lecturer of the Respondent and has zero job security or continuity despite being employed for over 5 years with the Respondent.

In evidence , the Complainant outlined her tasks and duties which included being 100% responsible for all modules delivered, i.e., designing and updating all materials for the module, researching the topics and curating reading lists and resources for the learners/students. Her position further requires that she entirely responsible for all assessment of learning and for the administration of all grades on the Respondent’s official grading systems as well as dealing with repeat exams.

The Complainant stated in evidence she worked across two main departments: Work and Employment Relations (WES) and Management and Marketing (M&M).  In M&M she works primarily with the Management Development Unit ( MDU) which delivers education and teaching to those in industry from Cert, BA and Postgraduate Level.

It is the Complainant’s complaint that she was recently informed by her manager, Ms Yvonne Delaney that the MDU was growing and if she wanted to remain working in this area, she was advised to set up a limited company and tender for the work. The Complainant submitted this is work she is already doing and felt she was being forced to do this by the Respondent as a way of avoiding its employment obligations to her. She submitted the demand for teaching exists as is the funding and she has the experience and skill to carry out the job. Yet, she feels she was presented with this ultimatum. She gave evidence that only a small proportionate of part time Lecturers had set up limited companies. She is fearful that teaching hours will no longer be offered to her.

Ms Delaney on behalf of the Respondent gave evidence that the MDU operates on a commercial basis running courses for industry as opposed to students entering through the CAO system. Consequently, the MDU it is not in receipt of funding from the Department of Education and Skills and availability of work is neither predictable nor consistent.

The work for which the Complainant was engaged to carry out in both the MDU and the M&M is therefore variable in nature and the hours fluctuate depending on the number of courses being run and the quantity of students enrolled in these courses. Ms Delaney gave the example of January 2022 and as of the date of the hearing she had no idea as to the volume of work that would be available.

Occasionally there is no work available for the Complainant and when work becomes available she is required to complete a start-up form which is an administrative exercise for the purposes of payroll. It was further highlighted by the Respondent that this does not constitute the issuing of a new / additional contract of employment; rather it is an administrative process to ensure the Complainant is paid.

CA-00036032-001 and CA-00036032-006

The Respondent submitted that both complaints under Section 7 of the Terms of Employment (Information) Act 1994 were dealing with the same issue. They are duplicate claims and dealt with as one – a request for placement on a contract of indefinite duration.

The Respondent made the following legal arguments in relation sot Section 7 of the Act:-

“Claims actionable under the Terms of Employment (Information) Act 1994 include; failure to provide a statement of the requisite terms and conditions within the requisite time frame in accordance with section 3 thereof and failure to give due notification of any changes to said Terms and Conditions in accordance with section 5. The claim as articulated does not fall within either of these causes of action. Furthermore, the contract as provided in 2015 is in compliance with the requirements of section 3 and no changes were made such that notification would be required under section 5.”

The Respond net further argued, without prejudice to the above argument, that the Complainant has always been employed as a “As and When Required” basis through an indefinite casual hour’s contract with effect from 2015.

Whilst the clause states that “this contract will not lead to a contract of indefinite duration as this is not a permanent position” there is no end date and so the this is, in practice, an open-ended contract with no end date or a contract of indefinite duration. It was further submitted that this was pointed out by the Complainant in her own Complaint Form.

The Respondent referred to Section 9 of the Protection of Employees (Fixed Term Work ) Act 2003 which refers to the  entitlement to a contract of indefinite duration arises when two or more fixed term contracts exceed 4 years in duration. However, this is not the claim presented by the Complainant.

It was further noted that the Complainant was never issued with any fixed term contracts, she was issued one casual/ “as and when” contract in 2015. There were periods during which no hours were available and when hours became available she re-commenced under the same contract and was required to complete forms to re-activate her re-employment on the internal HR “CORE” system for payroll purposes. It was argued that the Complainant was issued with one contract only in 2015 and therefore no entitlement arises to a CID as alleged.

 CA-00036032-007

The Complainant was hired as a casual/ hourly paid member of staff along with approximately 40 other tutors, both internally and externally, hired on the same basis. A number of tutors , approximately 17 or 18 , have their own companies while others are sole traders. There is one full time member of teaching staff only engaged in the MDU.

In explaining the difference between a tutor in MDU , which the Complainant is, and a Lecturer, Ms Delaney stated that there is clear breakdown in duties of 40% lecturing, 20% research and 20% administration for full time Lecturers. In comparison, the Complainant does carry out lecturing, there is no doubt about this and she does some administration such as grading papers but the administration for Lecturer is attending interviews and open days as well as ensuring students have the right qualification. As regards the designing of courses, this is consistent for Lecturers at the start of each academic year while the Complainant’s work fluctuation depending on the work she was assigned. Ms Delaney further noted that the Complainant did not or was not on a 10-year Lecturer track.

Ms Delaney gave a further example of Dr J ,a full-time permanent Lecturer by way of comparator who returned to the MDU after working on a project. AS a result of his Lecturer status he must be given first allocation of hours . This is beyond Ms Delaney station to decide on this. The Complainant asked Ms Delaney , under cross examination, whether Dr J was asked to set up a company. Ms Delaney replied no, that he would not be able to work in the University if he had a company as he was a permanent Lecturer.

Ms Delaney gave evidence that a review of the tendering system began in 2018 with a team of professionals. In April 2021 it was recommended that the basis for offering teaching hours be formalised and the new system was introduced. The process is now decided upon by procurement through the e-tenders website. 

Ms Delaney accepted she had a conversation with the Complainant , one which she described as “ a casual meeting” where Ms Delaney explained the tendering process and there were changes coming down the line. However, at that time Ms Delaney herself was not clear on the process as it was 1.5 years away from a decision.

After hearing the Complainant’s evidence at the hearing, the Respondent raised the following objections:

1.           She is not a Lecturer. This is a very clear position within the University and not what her contract provides for. She is a Casual/Hourly Paid Staff Member.

2.           It appears the Complainant is seeking a Contract of Indefinite Duration (CID) but this is the contract she already holds. It was submitted that it appears the Complainant is seeking a Lecturer’s contract, which is not within the Adjudicator’s gift to give. 

3.           The Complainant has failed to provide a named comparator who carries on “like work” or how she was treated less favourably.

4.           Therefore, the Complainant has failed to discharge the burden of proof required of her.

5.           The Respondent is at a loss as to what the Complainant is actually seeking at this hearing.

CA-00036032-001 and CA-00036032-006

Section 3 of the Terms of Employment (Information) Act 1994 provides what a written statement of terms of employment but upon hearing the parties evidence and submissions , it is clear that the Complainant’s dispute with the Respondent relates to a contract of indefinite duration. This type of complaint is specifically provided for under the Protection of Employees (Part Time Work ) Act 2001. 

For completeness the Complainant was provided with a contract of employment dated 15 January 2015 and continues to be employed under that same contract. From review it is in compliance with Section 3 of the 1994 Act.

Consequently, both I find both complaints, CA-00036032-001 and CA-00036032-006 , are not well founded.

CA-00036032-007

Section 3 of the Protection of Employees (Part Time Work ) Act 2001 defines conditions of employment:

“conditions of employment” includes conditions in respect of remuneration and matters related thereto (and, in relation to any pension scheme or arrangement, includes conditions for membership of the scheme or arrangement and entitlement to rights thereunder and conditions related to the making of contributions to the scheme or arrangement)”

Section 15 prohibits penalisation: -

“15.—(1) An employer shall not penalise an employee—

(a) for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part, or

(b) for having in good faith opposed by lawful means an act which is unlawful under this Act, or

(c) for refusing to accede to a request by the employer to transfer from performing—

(i) full-time work to performing part-time work, or

(ii) part-time work to performing full-time work,

or

(d) for giving evidence in any proceedings under this Act or giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a), (b) or (c).

(2) For the purposes of this section, an employee is penalised if he or she—

(a) is dismissed, suffers any unfavourable change in his or her conditions of employment or any unfair treatment (including selection for redundancy), or

(b) is the subject of any other action prejudicial to his or her employment,

but, where any such action with regard to the employee is in respect of the matter referred to in subsection (1)(c), that action shall not constitute a penalisation of the employee if both of the following conditions are complied with—

(i) having regard to all the circumstances, there were substantial grounds both to justify the employer's making the request concerned and the employer's taking that action consequent on the employee's refusal, and

(ii) the taking of that action is in accordance with the employee's contract of employment and the provisions of any other enactment of the kind to which section 20 (2) applies.

(3) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts, 1977 to 1993, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(4) In this section—

“full-time work” means work which, if it were performed, would result in the person performing it being regarded as a full-time “

Burden of Proof is set out in Section 9 of the Act:-

“9.—(1) Subject to subsection (2) and (4) and section 11 (2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.

(2) Without prejudice to section 11 (2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated”

It was put to the Complainant in cross examination that she was comparing herself to a Lecturer and this was put to the Complainant a number of times, but she was unable to identify (a) a comparator who undertook “like work” and (b) the less favourable treatment she claims. 

The evidence of Ms Delaney around the explanation the difference between a Lecturer and a Tutor , is accepted. It is further noted that the Complainant while cross examining Ms Delaney that she understood “the 40/20/20 position” of a Lecturer. The Complainant’s contract of employment which she relied upon states her grade of “Casual/Hourly Paid Staff”.

Having carefully reviewed her submissions and evidence, it appears the basis for the Complainant’s complaint is that she was asked to set up a limited company by the Respondent. She chose not to. Despite this decision she continued to receive work in line with her contract of employment.

Based on the evidence before me, the Complainant has failed to discharge the burden of proof set out in Section 9 of the Act and therefore, her complaint is not well founded.

CA-00036032-001 and CA-00036032-006

I find this complaint is not well founded.

CA-00036032-007

I find this complaint is not well founded.

Protection of Part Time Employees – penalisation – not well founded. Terms of Employment (Information) Act 1994 – not well founded.