Worker

Employer

Anonymised Parties

Special Needs Assistant

School

Representatives

Shane Lambert Fórsa Trade Union

Lorcan Maule Mason Hayes and Curran

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00001729

30/08/2023

This claim is for compensation for the failure to properly apply a full-time contract to a Special Needs Assistant until 2019.

On 30 April 2018 the Complainants raised a formal grievance with the Respondent as follows:

  I was offered a full time contract which according to the Department of Education is 32hrs for pay purpose but since 2014 I have been paid for 30hrs. Since 2014 I have been working the same hours as full time SNAs that are being paid for 32hrs. According to the Department of Education, there is no such thing as a full time 30 hour contract. There is a full time contract of 32 hours a week, .83 contract of 26.5hours a week, .75 of 24hours a week and .5 of 16hours a week. My main grievance is that I am being paid less than my colleagues who are on a full-time contract even though I am working the same hours.

On 4 May 2018 the Respondent replied indicating that the substance of the grievance had been fully addressed in correspondence with the Complainants’ Trade Union. It was once again set out that the Complainant had not been offered a full-time contract with the Respondent as she was not working the same hours as a comparable full-time SNA. The Complainant was further reminded that the Grievance Procedure expressly stated that improvements in pay or other contractual agreements were outside its scope.

The Complainant received a full-time post with the Respondent in or around September 2019 and have worked under that arrangement since.

On 16 September 2022, the Respondent received a letter from Mr Shane Lambert of FORSA. At the hearing it was clarified that the claim now relates to compensation for back pay.

A preliminary matter was raised by the School concerning jurisdiction. This complaint and another one is now before the Commission on the same facts. The claim also would impact on other Special Needs Assistants at the school.

The worker claims that this claim is properly before the Commission and is an individual dispute. The claim relates to a failure to put the worker on the right contract when she was working the exact same hours as other colleagues who were working the same hours. This meant that she was being paid less than what she was due by right, based on the already agreed terms and conditions with reference to her scheduled hours of work. This is not a collective matter that affects the terms and conditions of other workers, as it is well settled that the worker should have received terms and conditions based on a full-time contract and that in turn was only rectified late. The outstanding claim relates to back pay.

This a matter that affects a group of workers. The school only received a budget allocation of 30 hours for the worker and based on that budget allocation could only pay her what it was allocated. When the budget allocation changed then it was able to change the contract to reflect the new budget allocation. To concede this claim affects another worker before this Commission and would also have knock on implications for other Special Need Assistants at the School.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties:

Section 13 of the Act states:

13.—(1)

(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.

This claim is about hours of work and the rate of pay that a worker is entitled to based on those hours of work. The worker claimed that she was paid less than others working the same hours. The worker was moved to a 32-hour contract on or about September 2019 and this claim relates to compensation for the delay to apply the correct weekly contract hours.

The question that arises is the matter now referred connected with rates of pay, of hours or times of work of, or annual holidays of, a body of workers. The claim is about back pay and compensation for delay to apply what others had. On the plain reading of the Act this is connected to a body of workers connected with rates of pay and hours of work. The grievance is about what others Special Needs Assistants were paid more. for doing the same work and the same hours as this worker.

The Union maintain that the claim is not connected to a body of workers and rates of pay and hours of work. However, this dispute arises as some Special Needs Assistants were placed on a full-time contract and paid for 32 hours while others were not and were paid for 30 hours; although, there was no difference in the hours actually worked. It appears the difference solely related to a budget allocation and that on the facts appears to be arbitrary. Whatever about the merits of the case it is on the facts connected to hours of work of a body of workers. The worker bringing the dispute does so because other workers who must be a body of workers were paid more than her, even though she worked the exact same hours.

The purpose of this provision as detailed in section 13, is to ensure that a piecemeal approach to a particular individual trade dispute does not create knock on implications that makes disputes more fragmented and difficult to resolve.

The nature of a trade dispute investigation and referral is that it is voluntary, and the opinion of the Adjudicator is sought based on the merits of the case to make a recommendation, so that the dispute may be resolved.  It is not a binding employment rights-based determination that is legally enforceable.

I note that in Byrne and McCutcheon on the Irish Legal System (2020 edition) the distinction between trade disputes and employment rights adjudication is clearly defined:

Employment

[8.57]

Most states have established statutory bodies with extensive powers to deal with issues arising in the employment context. Some such bodies are empowered to investigate and mediate in industrial relations disputes with a view to a negotiated settlement where other means have failed. Others have been established to make findings similar to a court of law, such as determining whether a dismissal was in breach of statutory requirements.

[8.58]

In the first category, that is mediation and conciliation, are the Workplace Relations Commission and the Labour Court. 90 Neither body is a court exercising the judicial power under Article 34; 91 rather their function is to adjudicate or mediate disputes that require the input of personnel who specialise in mediation between employers and employees. Both comprise representatives of employers, trade unions and other persons with expertise in the area of industrial relations.

The facts of this case point to a dispute that is connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers as it relates to back pay for the delay to appoint to the right weekly pay. That delay arose because of a budget allocation of 30 hours to this worker. There are other workers who also experienced the same delay or similar delay. The claim is brought as a body of workers who worked the same hours were paid for 32 hours. As this is not a stand-alone issue and as it is connected to hours of work of a body of workers and the workers entitlement to the same terms as the body of workers enjoy, I decline jurisdiction to hear this dispute.

Body of Workers-Rates of Pay-Jurisidiction.