Complainant

Respondent

Parties

Martin  Hamill

Kildare And Wicklow Education And Training Board

Representatives

Self-Represented

Ms. Ruth Heenan, IBEC

Act

Complaint 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-00049737-001

19/04/2022

The Complainant commenced employment with the Respondent on 1st January 1995. The Complainant hold two roles within the Respondent organization, as a tutor / teacher, and as a project worker. The Complainant earns an average weekly salary of €790.00.

On 19th April 2022, the Complainant referred the present complaint to the Commission. Herein, he alleged that he did not receive a written statement of terms of his employments. By further submission, the Complainant submitted he did not receive the correct rate of pay in the course of his employment and that his written statement of employment did not reflect the correct tenure of his employment. In answering the complaint, the Respondent denied these allegations, stating that the Complainant received a comprehensive set of documentation, that the same had been updated to reflect the changes to the Complainant’s employment.

A hearing in relation to this matter was convened for, and finalised on, 5th December 2022. No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings. As the matter did not involve a conflict of evidence, no witness evidence was taken. 

The Complainant has been in long-term discussions with the Respondent regarding the tenure of his employment. The Complainant was of the firm belief that his employment was in fact one of indefinite duration and, consequently, he requested an amendment to his contract to reflect the same. The Complainant formally raised this issue on 19th August 2020. On 14th June 2022, almost two years after the query and following the referral of the present complaint, the Respondent confirmed that the Complainant’s employment was, in fact, one of indefinite duration and attached a draft contact in this regard.

The complaint took issue with several of the terms contained within in the contract. In particular, he stated that his correct job title was “teacher” as opposed to “tutor”. Furthermore, he stated that the contract was deficient as regards his hours of work and his place of work.

A meeting in relation to these matters was arranged for 16th August 2022. Here, it was confirmed that the Complainant’s job title was in fact “teacher”. Assurances were provided regarding his rate of pay and the his hours of work.

On 16th November 2022, the Complainant received a contract of indefinite duration. This contract was broadly in line with that issued the previous June and did not address the issues that had been subsequently discussed.

In summary, the Complainant submitted that he was a full-time teacher and that he had an entitlement to the corresponding terms and conditions of employment. On foot of the same, the Complainant requested that the complaint be deemed to be well-founded and that he be issued with a statement containing the appropriate terms and conditions.

By response, the Respondent denied the complaint, and stated that all of the requirements of Section 3 of the Act had been complied with.

They submitted that the Complainant had two roles within the organisation, and consequently was provided with two contracts. In relation first role, as an “Adult Education Resource Person”, the Complainant has received a comprehensive statement of employment, including confirmation of an indefinite duration.  

Regarding the second role, the Complainant is engaged as a tutor / teacher. In this regard, the Complainant receives a contract that is automatically created by means of an internal system. This contract is a standard contract for such employees, and it amended to include the Complainant’s personal details.

In recent times, the Complainant sought to discuss his qualification status and tenure with the Respondent. By correspondence dated 16th September 2022, the Complainant was given comfort regarding his contract of indefinite duration and was assured that his terms would reflect the same in due course. The Complainant also requested to be paid at the “Qualified Teacher Incremental Pay Rate”. During an internal meeting, the Respondent confirmed that such rates are set by the teaching council, and that they would support the Complainant in his application in this regard. It was noted that  subsequent to the same, the Teaching Council have confirmed the rate, and the same will be applied to the Complainant’s contractual terms accordingly.

The present case involves a long running negotiation between the parties regarding the Complainant’s terms and conditions of employment. Under the impleaded legislation, the Complainant has right to a statement of the terms of his employment to be signed by the employer. As explained as the outset of the hearing, the Act does not relate to the enforcement of these terms, rather it simply requires that they appear in written form.

In this regard Section 3(1)(d) of the Act provides that part of the statement of employment must relate to, “the title of the job or nature of the work for which the employee is employed”. In this regard, the contract provided to the Complainant describes his role as “tutor”. The Complainant has contended, and it appears that the Respondent has agreed, that the Complainant’s job title may be amended to “teacher”. Notwithstanding the same, it is apparent that the Complainant received a statement in accordance with Section 3(1)(d) of the Act.

In addition to the foregoing, Section 3(1)(f) of the Act provides that the Complainant is entitled to the following statement,

“…in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires.”

The Complainant has contended that while the Respondent has confirmed that he is entitled to a CID, his contract retains many references to a fixed-term contract. In particular, he refers to his title, which refers to a “Tutor on a fixed term contract”. The Complainant further referenced clause nine of the contract, which states that the contact will be determined on foot of an end date that is left blank. In this regard, I note that the statement that was issued to the Complainant is at odds with what was confirmed to him via email, and naturally, this has caused the Complainant some concern. Nevertheless, it is apparent that these issues do not offend the requirement of the Act as provided for in Section 3(1)(f).

Regarding the Complainant’s hours of work, clause eight of the contract provides that, “the hours of work will be as specified in the Statement of Programme details”. The programme detail goes on to state that “the hours for the duration of the above programme will be variable in nature.”

Regarding the Complainant’s rate of pay, it is apparent that the statement refers to a rate set by the department that was correct at the time and has since been renegotiated.

In this regard, Section 3(1)(i) provides that statement must refer to, “any terms or conditions relating to hours of work.” Section3(1A)(e)(i)of the Act further provides that an employer must provide a statement of “the number of hours which the employer reasonably expects the employee to work (i) per normal working day, and (ii) per normal working week.” Having regard to the foregoing, it is apparent that the Respondent is in breach of this provision.

Having regard to the foregoing, I find that the complaint is well-founded. 

I find that the complaint is well-founded and consequently the Complainant’s application succeeds.

Regarding redress, Section 7 of the Act (as amended) empowers me to award compensation not exceeding four weeks remuneration in respect of breach of the Act. Having regard to the totality of the evidence presented, I award the Complainant the sum of €790.00, or the equivalent of one week’s remuneration, in compensation.

Terms of Employment, Hours of Work