Complainant

Respondent

Parties

Bahman  Honari

Dundalk Institute Of Technology

Representatives

Eimear Greenhalgh 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-00055831-001

30/03/2023

These matters came before the WRC dated 30th of March 2023 as a complaint submitted under section 7 of the Terms of Employment (Information) Act, 1994.

The complainant submits that he commenced employment with the respondent as  a part time lecturer on 26th of September 2022.

He submits that the respondent failed to provide him with a "Day 5 Statement of Terms and conditions of employment as provided for in Section 3(1A) of the Terms of Employment (Information) Act, 1994 and that as a consequence of this the complainant was not aware of his rate of pay.   The complainant contends that he was not placed on the correct rate of pay as the respondent did not deem  his previous experience as a Researcher in Maynooth University as analogous to that of an Assistant Lecturer in an Institute of Technology for starting salary purposes under the Department of Finance letter.

The complainant submits that he started off on part time hours in the first semester and was due to move to full time in semester two.

The complainant submits that he started lectures on the 3rd of October 2022 but that his contract was dated the 26th of September 2022.

The Respondent refutes the claim and submit that it provided the Complainant with a Contract of Employment within the timeframe as stated in the Terms of Employment (Information) Act, 1994.

The respondent submits that the Terms of Employment (Information) Act 1994 as amended re the Five-Day Statement came into effect on 16 December 2022 and is not applicable to this case. The Respondent respectfully requests that this claim fail.

By way of background the respondent submits that on 13 June 2022, the Respondent the position of Assistant Lecturer in Mathematics/Mathematics & Data Science (3-year Fixed Term Springboard funded) .

Interviews for this position were held on 25 August 2022 and the Interview Board placed the Complainant Number 1 of the panel of recommendations for appointment. A letter was sent to the Complainant on 01 September 2022 informing him of the outcome of the Interview Selection Board and that he had been recommended for appointment.

It also stated that “Your contract of employment will be issued to you when the student numbers have been confirmed; this will include your start date and salary details”.

The Respondent submits that it was still trying to establish if the course would attract enough students in order for it to run.  It submits that the course was not a normal CAO course but a funded Springboard programme, which normally attracted mature students.

 The Complainant carried out his Occupational Medical on Tuesday 13 September 2022 and met with the Head of Department of Computing and Mathematics Dr Fiona Lawless in the Institute. He confirmed that, if offered a full-time position, he would not be able to commence it until January 2023 due to his current work commitments with his then current employer.

The Respondent had established at this stage that the course would commence in late September 2022. They discussed if the Complainant was available to do Hourly Paid Assistant Lecturer hours (HPAL) up to December 2022 before starting the role as an Assistant Lecturer at a date to be agreed in 2023.

A potential start date was discussed between Dr Lawless and the Complainant for these HPAL hours and a date of 03 October 2022 was agreed.   A contract was sent on 16 November 2022 when the number of weekly HPAL hours was established fully.

The Complainant was informed verbally at a meeting with the Senior Staff Officer in late September/early October 2022 of the applicable HPAL rate and in an email dated 28 October 2022 which he acknowledged.

The Complainant questioned this rate stating that he should receive the higher HPAL rate i.e. the pre 2010 rate, which was the rate prior to the reductions of starting pay as outlined in the Department of Finance letter of 23 December 2010.

He had stated to the Senior Staff Officer that he had commenced in Maynooth University as a Researcher prior to 2010 and his salary then was pre 2010 salary scale. He also provided a copy of the Hosting Agreement which is applicable to admitting third country nationals for the purpose of scientific research. The position was as a Researcher in Maynooth University.

The Senior Staff Officer informed the Complainant that the Respondent required evidence of payment as a HPAL or as an Assistant Lecturer prior to 2010 before the Respondent could place him on that rate.    The Respondent does not deem the research position in Maynooth as analogous to that of an Assistant Lecturer in an Institute of Technology for starting salary purposes under the Department of Finance letter.     This has been the position of the Respondent towards any researchers who obtain lecturing positions since the 2010 letter. The post 2010 salary scale is applied to all except where evidence is provided of a pre-2010 Lecturing position.

The Complainant claimed that he had lectured in UCD, DIT, DCU and Trinity College.  However, he did not provide any evidence to the Respondent in support of this claim.

It is submitted that the complainant was informed by the Senior Staff Officer and by the HR Office that if he provided documentary evidence the Respondent would then review his rate of pay.   In his application for the Assistant Lecturer position, the Complainant stated his academic work experience but there is no mention in this application of lecturing experience in UCD, DIT or DCU prior to 2010. It does state that he was a Teaching Assistant in University of Limerick in 2007/2008 while he was a Ph.D. student.   This position is also not analogous to that of an Assistant Lecturer.

 The University of Limerick, as per their website states that “A Teaching Assistant post in the University of Limerick operates as a training contract.”

The Complainant did not accept that he was not entitled to be paid at the pre-2010 HPAL rate and disputed the rate that he was paid claiming that the Respondent was deliberately under paying him. He forwarded an email to HR on 22 November 2022 disputing the rate quoting the TUI website. The rate as displayed on the TUI website includes the 8% holiday pay.    The HPAL rates as used by the Respondent do not include 8% holiday pay.   The Respondent submits that it was acting in accordance with Circular Letter 0082/20107 as issued by the Department of Education and Skills in relation to removing the 8% holiday pay from the stated HPAL rate and to pay this at times of the year. When this 8% is added to the stated Respondent rate it is equal to that as displayed by the TUI website.

HR requested Dr Lawless to raise with the Complainant the fact that they were still awaiting from him evidence of his entitlement to the pre-2011 HPAL rate. The Complainant at a meeting with Dr Lawless still did not accept the Respondent’s position and demanded a direct response from the HR Manager.  The HR Manager wrote to the Complainant  on 09 December 2022 outlining the position in relation to his HPAL rate of pay and the Fixed Term position.   The Complainant responded on 14 December 2022 and still did not accept the Respondent’s position. He also still did not provide any of the evidence requested except a copy of the Hosting Agreement with Maynooth to support his claim.

The HR Manager wrote to the Complainant again on 20 December 2022 informing him that it would not be offering the position of Assistant Lecturer in Mathematics and Data Science (Fixed Term) to him.   This was due to other circumstances with the Complainant unrelated to the matter of his pay. The Complainant has submitted a separate claim to the WRC dated 15 June 2023 in relation to this issue. The Complainant also wrote to the new incoming Respondent’s President on 03 January 2023  complaining against the HR Manager re this matter. The President responded on 30 January 2023 confirming the Respondent’s position.

Section 3(1)A of the Act provides that,

“…an employer shall, not later than 5 days after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State…

(c) 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;

(d) the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act 2000.”

The complainant advised the hearing that the respondent failed to provide him with a "Day 5 Statement of Terms and conditions of employment as provided for in Section 3(1A) of the Terms of Employment (Information) Act, 1994 and that as a consequence of this he was not aware of his rate of pay.  

In this regard, the Respondent advised the hearing that they provided a Contract of Employment to the Complainant on 16 November 2022 following confirmation of his weekly hours to be worked and commencement on 03 October 2022 and submits that this was in accordance with the Terms of Employment (Information) Act, 1994.

The complainant advised the hearing that he should have been placed on a higher rate of pay asserting that his previous experience as a researcher in Maynooth University should have elevated him to a higher rate of pay that of Assistant Lecturer.    The complainant also submitted that he had previously lectured in UCD , DIT and DCU.  He added that he was also lecturing in Trinity on a part time basis before and during his employment with the respondent.

The Respondent advised the hearing that they treated the Complainant as a new entrant in accordance with the letter as issued from the Department of Finance on 23 December 2010 in relation to starting pay on Recruitment from Open Competitions.   The respondent advised the hearing that despite numerous requests to provide documentary proof of working as a HPAL with UCD, DIT and DCU pre 2010 and as outlined in the background to this case above, the Complainant never provided any such documentation except a copy of a Hosting Agreement with Maynooth University as a Researcher and his placement on the pre 2010 scales.

The respondent advised the hearing that the complainant’s position as a Researcher in Maynooth University was not deemed by the Respondent as analogous to that of an Assistant Lecturer in an Institute of Technology for starting salary purposes under the Department of Finance letter. This has been the position of the Respondent towards any researchers who obtain lecturing positions since the 2010 letter.

The respondent advised the hearing that the post 2010 salary scale is applied to all, except where evidence is provided of a pre-2010 Lecturing position.   

In his application for the Assistant Lecturer position, the Complainant stated his academic work experience but there was no mention in this application of lecturing experience in UCD, DIT or DCU prior to 2010.

 It does state that he was a Teaching Assistant in University of Limerick in 2007/2008 while he was a Ph.D. student. The respondent advised that this position is also not analogous to that of an Assistant Lecturer. The University of Limerick, as per their website, deems Teaching Assistant to be “A Teaching Assistant post in the University of Limerick operates as a training contract.” 

The Respondent also totally refutes the allegation of the Complainant that it was not even paying him the correct post 2010 HPAL referring to the information on the TUI website. The rate as displayed on the TUI website includes the 8% holiday pay. The HPAL rates as used by the Respondent do not include the 8% holiday pay and this is in accordance with Circular Letter 0082/20107  as issued by the Department of Education and Skills.

This Circular stated that Institutes must remove the 8% holiday pay from the stated HPAL rate and to pay this at particular times of the year. When this 8% is added to the stated Institute rate it is equal to that as displayed by the TUI website. The respondent advised the hearing that any holiday pay due to the Complainant has been paid to him.

A lot of the complainant’s arguments at the hearing centered around whether or not a postdoctoral researcher post in University of Maynooth that was paid as "NON New ENTRY" in 2011, falls to be considered as a higher grade when compared to the Assistant Lecturer position in DKIT in 2022.     The complainant in making this assertion submits that his previous experience should have entitled him to a higher rate of pay but adds that the respondent deemed the posts not to be analogous.

This matter is not for determination by me in a claim submitted under the Terms of Employment Information Act.   I note the complainant’s assertion that his previous experience should have been taken into account in deciding his rate of pay however, I note that the salary paid was the rate set out in the contract of employment.    The complainant is arguing that the respondent should have recognised his previous experience as being analogous to that of Assistant Lecturer.   This is a matter which may be suitable for referral under the Industrial Relations Act.

As regards the claim before me of failure to provide the complainant with a five-day statement the Respondent advised the hearing that they provided a Contract of Employment to the Complainant on 16 November 2022 following confirmation of his weekly hours to be worked and commencement on 03 October 2022 and submits that this was in accordance with the Terms of Employment (Information) Act, 1994.

The Respondent states that it has acted in accordance with the agreed instructions as issued by the Department of Finance and the Department of Education and Skills re starting pay on Recruitment from Open Competitions and payment of holiday pay to HPAL’s.

The respondent  argued that the requirement to provide a  5-day statement in accordance with Section 3(1A) had not come into being at the time of the complainant’s commencement of employment arguing that he had received a statement of his terms of employment as provide for under the Terms of Employment (Information) Act 1994.

I note that the requirement for a statement of core terms to be provided within 5 days, was enacted on the 4th of March 2019 and thus had been enacted at the time of the complainant’s commencement of employment with the respondent.

I am thus satisfied from the totality of the evidence adduced that the Respondent has contravened section 3(1A) of the 1994 Act for failure to provide the 5-day statement in terms of employment pursuant to the Act.   Accordingly, I declare this claim to be well-founded

I declare this claim to be well-founded.  Accordingly,  I order the Respondent to pay to the Complainant compensation in the amount of €2,000.