SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Mr O'Neill
1. Appeal against Rights Commissioner's Decision PT20344/04/DI.
2. The worker began her employment with the College in August, 1998. Her case is that she was appointed Head of Girls' Residence with a part-time teaching commitment of approximately ten hours per week. In effect, the worker is claiming that her teaching contract was separate from her other duties and that the teaching was part-time.
The College's case is as follows:- historically the Department of Education has paid a flat rate to all part-time teaching staff regardless of qualification. Following the introduction of the Protection of Employees (Part-Time Work) Act, 2001, (the Act) the Department altered its system of paying suitably qualified part-time teaching staff to ensure that they were afforded parity with their whole-time incrementally paid colleagues. The introduction of incremental payment to part-time teaching staff did not lead to increases for teachers who did not hold the appropriate teaching qualifications recognised by the Department of Education. These employees remained on a flat hourly rate, as their qualifications were not the equivalent of whole-time Department-employed teachers. Prior to these changes to the Department of Education pay rates, Wesley College had traditionally paid the Department part-time teacher rate to all part-time teaching staff regardless of their qualifications. This, however, did not apply to the worker who was paid an annual salary.
In January, 2004, the Board of Governors decided to mirror the Department of Education pay scales for fully qualified-part time teachers with effect from the 1st of January, 2004. Effectively this meant increasing the rate for qualified staff from €27.12 per hour to €37.00 per hour. The worker's salary was not affected by this as she was a full time member of staff and she did not have the necessary qualifications. In April, 2004, the Board of Governors backdated the rate to the 1st of September, 2003.
The College maintains that it asked all suitably qualified part-time teachers to submit evidence of their qualifications to the acting Principal but that the worker concerned failed to do so. The worker wrote to the College expressing her dissatisfaction at not getting the increased rate of pay. When informed that she did not have the suitable qualification (based on information available to the College) the worker resigned her post on the 31st of August, 2004. She referred her case to a Rights Commissioner and his decision, dated the 13th of January, 2005, was as follows:-
"I find against Ms. Peters' complaint under the Protection of Employees (Part-Time Work) Act, 2001, as I believe that she is a full-time employee of Wesley College and therefore has no grounds to make her complaint under this Act."
The worker appealed the decision to the Labour Court on the 2nd of February, 2005, in accordance with Section 17(1) of the Protection of Employees (Part-Time Work) Act, 2001. A Labour Court hearing took place on the 15th of September, 2005, the earliest date suitable to the parties.
3. 1. At a hearing in 2004 the College stated that the decision not to afford the worker parity with qualified part-time staff was based"solely on my lack of qualifications andnoton my hours of work".However, the worker showed that she held Qualified Teacher Status in Britain since 1971, and this should be recognised in Ireland following implmentation of EU Directive 89/48/EEC of 1991.
2. The worker was not given time to produce evidence of her qualifications.
3.Neither of the worker's successors as Head of the Girls' Residence have a teaching commitment.
4. 1. The worker was employed on a full-time basis. Her contract of employment specified that she was paid an annual salary for the duties she carried out, including teaching. As such, she cannot make a claim under the 2001 Act.
2. Even if the worker could make a claim under the Act, she does not hold sufficient qualifications to qualify for the increased rate of pay.
The first issue to be determined by the Court is whether the claimant is a "part-time employee" within the meaning of Section 7 of the Act. This Section defines that term as follows:
"part-time employee" means an employee whose hours of work are less than the normal hours of work of an employee who is a comparable employee in relation to him or her"
If the claimant was not a part-time employee as so defined she lacks locus standi to maintain the present proceedings and the Court has no jurisdiction to adjudicate on her claim.
The Court is satisfied that the claimant was employed as Head of Girls Residence at the respondent college. She was employed in a full-time capacity in that position. The duties attaching to the post involved some teaching as well as general supervision of the students under her care.
Essentially the case made by the claimant is that the time during which she discharged teaching duties should be severed from the remaining duties of her post and that in respect of those duties she was a part-time employee. The Court cannot accept that this submission is correct. It is clear that the claimant held a single post and that teaching was an intrinsic part of the duties attaching to that post.
In these circumstances, the Court must hold that the claimant was not a part-time employee during the period covered by her complaint. Accordingly, her appeal cannot succeed.
The decision of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
4th October, 2005______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.