Case Number: ADJ-00026175. Workplace Relations Commission

• Docket Number: ADJ-00026175
• Hearing Date: 06 October 2020
• Date: 27 January 2021
• Court: Workplace Relations Commission
• Respondent: A Third Level University

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00026175

Parties:

	Complainant	Respondent
Anonymised Parties	A Worker	A Third Level University

Representatives Dermot G O'Donovan Sinead Mullins

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00033232-001	18/12/2019

Date of Adjudication Hearing: 06/10/2020

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 6 of the Payment of Wages Act , 1991following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The complainant was engaged on a sessional basis by the respondent from January 1990 to a current date.She works 16 hours per week and earns €56.07 per hour.Arising from an investigation by SCOPE into the complainant’s employment status , it was determined that the claimant was an insurable employee from January 1990.Negotiations ensued on the provision of a contract of employment and a dispute arose in relation to the complainant’s rate of pay. The claimant is seeking to retain her sessional rate of €56.07 per hour while the respondent is seeking to assimilate the claimant onto the public sector rate of pay of HSE Senior Physiotherapist scale of €62.493(Max point) pa on a pro rata basis.This is unacceptable to the claimant as it involves a loss of €9,000 per year and she contends the respondent’s offer constitutes a breach of the Payment of Wages Act 1991.

Summary of Complainant’s Case:

In her complaint form the claimant submitted as follows : I have worked in the student health centre in the university on a part time basis as a physiotherapist for the past 30 yrs.I was paid per hr {56.07} by submitting a monthly invoice for hours worked. As of July 2019 on foot of a decision by scope I am deemed an insurable employee from 1990 to date. I returned to work in September and submitted an invoice for hours worked as per normal practice, this was rejected on the basis that I was now considered an insurable employee of the university and therefore not entitled to be issuing invoices to the university. I have not been paid to date for work done over the past 4 months. I have had a few meetings with Mr X from HR to try to sort out payment. His solution was to offer me a contract at a rate far below what I had been paid for the past 10 years . Sept '18-May '19 salary€ 27,362.16 Sept'19-May '20 proposed salary inclusive of holidays€ 18,748. This is a drop of €9,000 or more excluding holiday pay. Nothing else has changed as regards my working conditions. In Mr.X’s last email 16/12/19 he stated that the university required me to send back a signed copy of the contract sent to me in order for them to pay me. This I have not done. I feel I am being coerced into agreeing to what has been offered as I find the whole process very stressful and would like to bring it to an end. However this would not I feel be in my best interests considering the drop in salary as I have no support I am hoping you will provide guidance.” The claimant submitted that she had been trying to negotiate with the respondent from Sept. 2019 – Jan2020 but the university “remained steadfast” in their position and remained fixed on the HSE Senior Physio rate of pay. She asserted that she felt every month that she was being pressured into agreeing to accept the university’s offer in order to meet the payroll deadline – she submitted copies of the emails exchanged between the parties which she contended supported her position that she was being pressurised by the university. The complainant submitted that she was seeking to retain the sessional rate of €56 per hour .She asked that her rights and entitlements as an employee be recognised retrospectively to January 1990 and tht she be treated in line with other colleagues (Counsellors) in the university who had successfully sought recognition as employees. The complainant chronicled the entitlements that she said she had been denied for a period of over 30 years by virtue of her non employee status. It was submitted by the claimant’s representative that the respondent could have paid the claimant if they wanted to without requiring her to sign the disputed contract as they were aware of her BIC and IBAN details. It was submitted that the university’s proposal reduced the complainant’s rate of pay by 30% and that she was entitled to retain the rate of €56.per hour into the future. It was advanced that the university could have sought appropriate comparators in the private sector but had failed to do so. It was submitted that following her initial engagements with HR the complainant left believing she would retain her existing salary but soon found herself back to square 1.It was submitted that the complainant found the whole process stressful and that it had adversely affected her health.It was advanced that the claimant had not declined mediation and it was submitted that the claimant’s colleagues who were employed as counsellors were being treated differently to her.It was submitted that the respondent was arguing about angels on a pin and that they expected the claimant to be grateful for what she was entitled to – it was submitted that the 33.3% reduction in her pay was a deduction . In a post hearing submission on the matter of jurisdiction the claimant’s representative submitted as follows: “Physiotherapy was an integral feature of student services and that the service “ is a service offered by the respondent to its students .The service does not come from an independent contract but rather from the respondent directly”. It was further submitted by way of illustration “in the event that a claim for negligence resulting in personal injury damages , the litigation ensuing would have included the university as a co-defendant as well as the claimant. The high probability would be in these circumstances , that the University would solely have been the Defendant....