Case Number: ADJ-00016654. Workplace Relations Commission

• Court: Workplace Relations Commission
• Docket Number: ADJ-00016654
• Hearing Date: 12 June 2019
• Date: 01 October 2019
• Year: 2019
• Parties: A lecturer v A Third Level Institution

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute.

The Complaint reference CA-00021554-003 taken under Section 39 of the Redundancy Payments Act, 1967 was withdrawn on the day of the hearing.

Background:

The Complainant was a tutor with the Respondent and was informed in May 2018 that tutors employed on a full-time basis cannot be paid for work on a part-time basis which is in addition to their full-time contracts. He claims that he was effectively dismissed as he had not secured his part time hours since 2018. The Respondent refutes the claim of dismissal made against it. The Respondent was in effect incorrectly paying the Complainant to tutor and to work generally for it, on a casual basis, while he held a full-time role within the public service and was being paid. It claims that this is contrary to the overarching circular governing “one person one salary principle” in the public service.

Summary of Complainant’s Case:

The following is a summary of the Complainant’s case. The Complainant was employed on a full-time basis as a lecturer by the Respondent in a series of fixed-term contracts from 19 August 2013 until his dismissal on 31 August 2016. He was appointed assistant professor in another Third Level Institution in September 2016. He also worked as a tutor with a consortium - the Respondent and other educational bodies - to promote educational opportunities in part time education. This required him to deliver 4 x 2.5-hour tutorials on designated Saturdays and follow up support for students, each year from 2011 until June 2017 before he was given a full-time lecturer post. He said that there was no written contract of employment and no pension contributions made. His earnings fluctuated between €8,000 and €16,000 over that time. He said that the Respondent had sought and received confirmation from the other Third Level Institution that the Complainant had their permission to carry out this work in both 2016 and 2017. The Complainant said that he expected to resume tutor duties as normal in August 2018 however in May 2018 he received an email stating that “We have been informed that tutors who are employed on a full-time basis in another public sector body, which includes higher education institutions, under the Department of Education & Skills regulations, cannot be paid on a part-time basis for teaching which is addition to their current full-time employment contracts … I would appreciate if you could inform me whether you are in a full-time post at your institution ...” He wrote back to confirm that he held a full-time position and sought details of the departmental regulations. He was informed that the consortium had been instructed not to continue to employ him. He asked for the person dealing with the matter but did not receive any more information. CA-00021554-001 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 The Complainant said that Section 6(7) of the unfair dismissal Act 1977 provides that; “… in determining if a dismissal is as unfair dismissal, regard may be had … (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal …” He also said that the EAT in Employee v. Employer UD206/2011 found that an employer had not behaved reasonably and accordingly the dismissal was not fair, they cited a number of reasons in particular “1) the decision to make the claimant redundant was taken [on a date prior to the employee being informed of the possibilities of redundancy] and 2) there was no serious or worthwhile consultation with the claimant…” The Complainant said that the decision to make him redundant was made prior to 21 May 2018 and there was no consultation with him. CA-00021554-002 - Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 The Complainant said that he was in continuous service as a tutor for seven years and therefore under the Act he is entitled to four weeks’ minimum notice of dismissal, which he did not receive, nor was he paid in lieu of notice. CA-00021554-004 - Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 The Complainant claims that the Respondent is a public service body and the provisions of all the Public Service Agreements apply. The Complainant said that the provisions of those agreements state that “compulsory redundancy will not apply ... save where existing exit provisions apply.” He claims that no existing exit provisions were ever cited to him and none apply.

Summary of Respondent’s Case:

The following is a summary of the Complainant’s case. The Complainant was employed in a number of roles on a full-time fixed term contract from August 2013 to August 2016. He was unsuccessful with regard to his...