FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001 PARTIES : GALWAY CITY VEC (REPRESENTED BY PURDY FITZGERALD SOLICITORS) - AND - PATRICIA O ' DONOVAN DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner’s Decision r-087083-pt-09.
BACKGROUND:
2. The Employer appealed the Rights Commissioner's Decision to the Labour Court on the 13th July, 2010. A Labour Court hearing took place on the 7th February, 2012. The following is the Labour Court's Determination:-
DETERMINATION:
The dispute came before the Court by way of an appeal by Galway City VEC against the decision of a Rights Commissioner given under the Protection of Employees (Part-Time Work) Act, 2001 (the Act) in which the Rights Commissionerheld thatGalway City VECwas in breach of Section 9(1) ofthe Act.
Ms O’Donovan claimed that Galway City VEC was in breach of Section 9 (1) of the Act when it denied her recognition of her part time service prior to 2001 for the purposes of incremental credit in line with Department of Education and Science Circular 0020/2008.
For ease of reference the parties are now given the same designation as they had at first instance. Hence Galway City VEC will be referred to as “the Respondent” and Ms Patricia O’Donovan will be referred to as “the Complainant”.
Background
The Complainant commenced employment with the Respondent in 1994 as a part-time teacher on its Vocational Training Opportunities Scheme (VTOS), the number of her teaching hours varied. The Complainant received an Eligible Part Time (EPT) Contract for 17.25 hours per week in September 2000 and accordingly received annual incremental salary increase in line with her years of service from 2000 onwards, she commenced on point 3 of the VEC Teachers Salary Scale.The Complainant received a Contract of Indefinite Duration (CID) in September 2005.
Department of Education and Science (DES) Circular 0029/2007 published in April 2007 and awarded incremental credit on the common basic salary scale for part-time teachers post-December 2001 i.e. followingthe introduction of the Act. This was followed byDES Circular 0020/2008 which provided for the award of incremental credit prior to the 31st August 1998. It stated that service in VTOS Centres must have been not less,in the aggregate, than the minimum number of annual teaching hours required for whole-time service, i.e. 800 hours up to 31stAugust 1995 and 735 after 31stAugust 1995. Eligible hours excluded substitution hours. Credit due under the terms of the Circular was to be awarded with effect from 1stSeptember 1998 or the date of entry onto the Common Basic Scale (whichever was the later). Under the provisions of the Circular, incremental credit could be awarded for service prior to 1998providing the service was for full hours acrossthe full school year starting from the first day to the last day of term.The Circular invited teachers wishing to applyfor incremental credit under the terms of the Circular to apply to the CEO of the VEC by which the applicant was employed.
The Complainant applied under the scheme on 26thFebruary 2009 however, her application was declined as she did not meet the required minimum timetabled hours in the years 1994-2000.
The Complainantappealed this decision on 19thMarch 2009 and on the 26th May 2009 shesought additionalinformation on the Respondent’s decision. The Complainant informed the Respondent that she intended to refer the matter to the Department of Education and Skills.The Complainant received a responsewith the requested detailsfrom the Respondent on 3rdJune 2009. Shesubmitted her claim under the
Act to the Rights Commissioneron the 20thNovember 2009, which was received by the Rights Commissioner on 23rdNovember 2009.
Summary of the Complainant’s Case
The Complainant alleged that as the Respondent failed to recognise her service for the years 1994 to 2000 for incremental purposes, she was therefore being treated less favourably than full-time employees in relation to her conditions of employment prior to 2000. Thus her increments in 2000 started at a lower level than applied to her full-time colleagues. The Complainant asserted that this act was further compounded as the Respondent continued to discriminate against her from 2000 to 2011 when she was paid increments at a lower level than they might have been if her previous service had been taken in to account.
The Complainant contended that Circular 0020/2008 was not in compliance with the provisions of the Act insofar as the Act provides equal treatment for part-time staff with comparable whole-time staff with regard to pay, holidays and conditions on a pro-rata basis depending on the number of hours worked.
She stated to the Court that she was aware of contemporaries of hers who worked part-time, (as she did in the period 1994-2000) who accumulated 'the minimum number of annual teaching hours required for whole-time service' who had been awarded incremental credit for that period.
Moreover, she submitted that contemporaries of hers who worked on a contract basis during that period were automatically awarded incremental salary increases, even when their contracts were for fewer than'the minimum number of annual teaching hours required for whole-time service'. She referred to the incremental salary increases she now receives even though her contract is for fewer than'the minimum number of annual teaching hours required for whole-time service'and questioned why her service for the period 1994-2000 was not similarly recognised in accordance with the Act.
Summary of the Respondent’s Case
Mr Alastair Purdy, Purdy Fitzgerald Solicitors, on behalf of the Respondent contended that the alleged discriminatory treatment complained of took place prior to the Act, more specifically from 1998 to 2000. Therefore the contravention (if any) took place prior to the Act coming into force.
Mr Purdy said that the Complainant was seeking to make a case that the statutory protection should apply to service predating the Act. The terms of the Act under which the claim is being made apply from the date of the commencement of the Act, i.e. 15thDecember 2001 and do not have retrospective effect.
The DES Circular0020/2008recognises that there may have been discriminatory treatment during the period prior to the enactment of the Act by virtue of the incremental salary credits given in respect of Whole Time Service during that time period but that recognition itself is not when the discriminatory treatment occurred as it merely recognises that this may have been an issue retrospectively.
Without prejudice to the foregoingMr Purdy made submissions to the Court on two points. Firstly, he submitted that the Complainant’s claim was out of time. He held that Circular0020/2008was published in February 2008 therefore the effective date for the purposes of taking a claim for any alleged contravention of the Act must be from February 2008. He said under Section 16 of the Act that the Complainant had six months from that date to take a claim under the Act,i.e. up to August 2008 and with reasonable cause,up to February 2009. In any event, he said that she delayed submitting her claim to the Rights Commissioner until 20thNovember 2009 and the Rights Commissioner did not receive her claim until 23rdNovember 2009.
Secondly, he submitted thatthe provision of incremental credit for past service is not a“condition of employment”as defined under the Act. For it to be so it would have to be"remuneration and related matters thereto"He said that the Act defines"remuneration",in relation to an employee as:
- (a) Any consideration in cash or in kind, which the employee receives directly or indirectly, from the employer in respect of the employment, and
(b) Any amounts the employee will be entitled to receive on foot of any pension scheme or arrangement.
Mr Purdy detailed the background to Circular0020/2008saying that it emerged as an industrial relations solution to an industrial relations matter and accordingly should not have been dealt with under the provisions of the Act. Circular0020/2008was a culmination of negotiations with the Teachers Conciliation Council,a body established under the Conciliation and Arbitration Scheme for Teachers and which is comprised of representatives of teacher unions, school management bodies, the Department of Finance and the Department ofEducation. Agreements reached at this Council are of general application. The agreed scheme for the award of incremental credit is set out in consolidated format in Circular0029/2007.The terms of the Circular0020/2008merely provided an agreed interpretation of the provisions of the consolidated Scheme, as outlined in Circular0029/2007,to certain teaching service in VTOS centres and Traveller Education Centres.
Mr Purdy citedMcGivern v Irish National Insurance Co Ltd[PS11982] where the Employment Appeals Tribunal stated that remuneration is not mere payment for work done but is what the doer expects to get as a result of the work he does in so far as what he expects to get is quantified in terms of money.
Mr Purdy said that in this instance there was clearly no expectation on the behalf of the Complainant thatshe would receive an additionalincrement for the work that she had carried out during the 1990's.Neither can the proposal to recognisepast discriminatorytreatment, by way ofan additional incremental credit be deemed to be remuneration
and accordingly no discriminatory treatment can be said to have occurred.
Mr Purdy submitted that the provision of an incremental credit for past service arising out of an industrial relations process is not consideration in cash or in kind and accordingly the Complainant cannot claim to be discriminated against either directly or indirectly.
Furthermore, Mr Purdy held that for a part-time employee to ground a successful claim under Section 9(1) of the Act, he/she must nominate a comparable full-time employee. He said that the Circular0020/2008was an attempt to retrospectively provide some compensation for discriminatory treatment prior to August 1998. It did not dealwitha matter of discrimination in 2008, it merely dealt with a matterthat dated back to 1998 specifically for part-time employees. Therefore, he submitted that at the date of Circular0020/2008there was no comparable full-time employee and as such no discrimination could have occurred at the date of the Circular coming into being or post same.
Mr Purdy concluded that no discriminatory treatment occurred in 2008 by virtue of the publication of the Circular0020/2008and the Complainant's claim was not unfairly dismissed by the Respondent in the circumstances.
Findings of the Court on the Preliminary Matters Raised by the Respondent
Firstly on the timing issue the Court is satisfied that the claim is within time in accordance withSection 16 (3) of the Act. The Court does not accept the Respondent’s contention that the effective date for the purposes of taking a claim for any alleged contravention of the Act must be within six months of the date of the Circular. The Court notes that the Complainant applied for the scheme on 26thFebruary 2009; on 26thMay 2009 she was notified by the Respondent that she was not eligible. The latter date is the date when she alleges the Respondent was in contravention of the Act. The Court is satisfied that date was within six months of the date when she referred her complaint to the Rights Commissioner. Therefore, the Court finds that her claim was referred in time.
Secondly, the Court is satisfied that entitlement for the award of incremental credit for past service for the purposes of placement on the correct salary scale point is a“condition in respect of remuneration and matters related thereto”.Accordingly, the Court is satisfied that it is encompassed within the term“condition of employment”as defined under the Act.
The Act
The general scheme of the Act is to provide that a part-time employee shall not be treated less favourably that a comparable full-time employee in respect to his or her conditions of employment, including pay and pension entitlements. Thus, in order to ground a claim under the Act a part-time employee must first identify a comparable permanent employee against whom he or she claims to be treated less favourably.
A part-time employee is defined in accordance with Section 7(1) of the Act as: -
- part-time employee” means an employee whose normal 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;
It is accepted that the Complainant herein is a part-time employee for the purpose of the Act. Section 7(2) provides that an employee is a comparable employee in relation to a part-time employee, if: -
- (a) the employee and the relevant part-time employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,
(b) in case paragraph (a) does not apply (including a case where the relevant part-time employee is the sole employee of the employer), the employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant part-time employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable employee in relation to the relevant part-time employee, or
(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant part-time employee is employed in and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,
The purpose of a comparator under the various statutes dealing with discrimination is to demonstrate if a higher value is placed on the same or similar work as that performed by the Complainant when it is performed by another employee having a different gender, characteristic, or status, as the case may be.
If the Circular 0020/2008 has no application to full-time workers there can be no contravention of the Act. It is for the Complainant to choose his or her comparator provided they meet the statutory criteria. No full-time comparator was nominated by the Complainant. The Court provided the Complainant with a number of opportunities to do so.
The Court hearing on 27thOctober 2011 was adjourned until 7thFebruary 2012 to provide both sides to submit further submissions and to allow the Complainant an opportunity to nominate a comparator within the terms of Section 7(2) (a) or (c). The Complainant was then provided with further opportunities up until 9thMarch 2012 however, the Complainant has failed to identify a comparable permanent employee against whom she claims to be treated less favourably.
As a comparator has not been identified there can be no cause of action under the Act to demonstrate that she has been treated less favourably in respect of her conditions of employment than a comparable full-time employee is treated. Accordingly, the Complainant’s claim must fail and the Respondent’s appeal must be upheld.
Determination
For all of the foregoing reasons the Court sets aside the Rights Commissioner’s decision and allows the Respondent’s appeal.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
16th April, 2012______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.