ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017089
A music teacher
An Education and Training Board
Stephen O’ Sullivan BL instructed by Rachel Scanlon
Byrne Wallace Law Firm
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003
Date of Adjudication Hearing: 12/09/2019
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The Complainant is a part time music tutor.
The Respondent is an Education and Training board.
The Complainant was hired in or around the 13th of September 2007. She worked nine hours each week. She tutored students in playing the violin.
Her employment ended on the 22nd of June 2018.
Her gross monthly wage was €1,193.94 gross. She worked three hours on three days per week during term time.
Summary of Complainant’s Case:
This claim is in relation to holiday pay. The Complainant was paid a composite rate of pay to include holiday pay.
The Complainant submitted she was not aware of what scale was used or if she was on different scales.
Her complaint was that her hourly rate of pay was inclusive of holiday pay and this was that it was in breach of the Organisation of Working Time Act.
She explained that he was not paid for the days that the schools in which she worked were closed. Examples of these were election days and during storm Ophelia.
She relied on the case of Faser Court –v- O’Brien DWT 0743. The Complainant sought compensation for this breach.
This complaint is under the Terms of Employment (Information) Act 1994.
Her complaint was that she started employment with the Respondent in 2007 and she didn’t receive her contract until March 2018.
The Complainant relied on Section 3 (1) of the Terms of Employment Information Act and Section 5 (1) of the Act.
The Complainant had an issue with the fact that she received a contract of indefinite duration in March 2018 and it was retrospective to the 1st of January 2017.
She also relied on Section 3 in relation to the following matters:
a) The date of the commencement of the contract of indefinite duration was wrong
b) Section 3 (g) (a) was not set out in her contract of employment (request for written statement of average hourly rate)
c) Section 3 (k) (ii) was not in her contract of employment (pension and pension scheme)
d) Section 3 (m) was not in her contract of employment (collective agreement).
This claim is in relation to unfair selection for redundancy.
The Complainant’s case was that while the Respondent had informed her that it no longer wished to work with primary and secondary school children as its focus was on adult education, she believed that there was demand for the service in the schools that she was attached to. She further submitted there was no adequate consultation with her before the dismissal occurred. No consideration was given as to how the redundancy could be avoided.
Her position was that her employment was wholly or partly self-financing, students paid money for each class and the money went towards her wages. The Respondent gave no consideration towards increasing the rate charged to students to make it fully self-financing if it was not already so. The Complainant submitted that an increase in student fees had occurred in the past.
The Complainant relied on the fact that she was not consulted before the dismissal and relied on the case of Fitzpatrick –v- Eurodrug Limited 2012 E.L.R. 165.
As regards her loss, the Complainant managed to replace four hours that she had lost by her redundancy. She submitted that she had a loss of earnings for the academic year 2018 to 2019 of €7,578.20.
This was a complaint under the Protection of Employees (Part Time Work) Act 2001. The Complainant submitted that she was afforded less favourable treatment as a part time employee.
The Complainant explained that she was not allowed access to a pension scheme and she gave an example of a tutor working for another ETB as a part time tutor who was a member of the superannuation scheme. This was an automatic enrolment scenario.
She also explained how she was not paid for days where the schools in which she worked were closed. She compared herself to permanent teachers who were paid.
She further explained how she had different terms in relation to uncertified sick leave. These terms were different to Department of Education paid teachers or tutors.
This was a complaint in relation to the Protection of Employees (Fixed Term Work) Act 2003. The Complainant submitted that she was afforded less favourable treatment as per the grounds outlined for CA-00022178-004. She acknowledged that she couldn’t receive a remedy under CA-00022178-004 and CA-00022178-005.
The Complainant sought compensation in relation to these breaches.
Summary of Respondent’s Case:
The Respondent submitted that the Complainant was hired as a music tutor on an Arts Education programme. The programme was promoted by the Respondent to support the development of the performing arts, mainly the teaching of music.
The Complainant was not a qualified teacher. She was not registered as a teacher with the Teaching Council of Ireland.
The Respondent submitted that the Complainant’s work was not funded by the Irish Exchequer but rather was “self-funding”. Any courses on which the Complainant tutored was dependent upon participants paying the tuition costs. Each student attending a music class was required to pay a fee which was collected by the tutor and remitted to the Respondent.
The Respondent admitted that while the monies collected were not always enough to meet the full costs of the Complainant’s pay, the programme was substantially self-funding. The Respondent received a budget of €30,000.00 for the programme. This budge was to cover building insurance, outlay, administration costs.
The Complainant’s contract of employment expressly provided that the hourly rate was “inclusive of holiday pay and calculated in accordance with the Department of Education and Skills circulars”. A premium of 8% was included in the Complainant’s rate of pay in respect of her annual leave entitlement.
Tutors are paid based on an hourly rate. There are no salary scales applicable to tutors. The Complainant worked 9 hours each week during term time. The Complainant was not rostered to work during periods of school holidays or during the summer vacation. The Complainant was paid a rate of €44.22 per hour. This amounted to a gross weekly wage of €397.80 per week.
The Respondent submitted that none of the schools in which the Complainant provided tuition were under the auspices of the Respondent nor under the auspices of any other ETB.
The Respondent submitted it had complied with Section 19 (1) (c) of the Organisation of Working Time Act 1997. The Complainant received a sum of 8% of the hours which she worked in a leave year throughout her employment as holiday pay. The Respondent acknowledged that the Complainant was entitled in accordance with Section 20 of the 1997 Act to be paid her annual leave when it was taken.
It submitted that while it was not in strict compliance with the provisions of the Act, the Complainant did not suffer any economic loss. The Respondent relied on the case of a Customer Services Advisor –v- a Customer Services Company (ADJ-00014935).
The Respondent submitted that the Complainant had no entitlement to be paid other than when working, on annual leave or for public holidays. They submitted that I had no jurisdiction to make any award in relation to school closures.
The Respondent submitted that the Complainant was out of time to bring any complaint in this regard. Without prejudice to same the Complainant submitted:
a) The Respondent at all times accepted it was the Complainant’s employer
b) The contract stated the Complainant was paid monthly and was given a payslip with the rates of pay
c) The Complainant’s position in relation to pension entitlement was dealt with in a separate communication to the Complainants. The Complainant relied on an email of the 9th of May 2018 and 17th of May 2018
d) It was impossible to refer to all collective agreements applying to tutors as they are set out in agreements and circulars which are updated regularly. The Respondent submitted the contract did acknowledge that there were applicable collective agreements.
e) The Respondent further submitted that it had complied with the spirit of the Terms of Employment (Information) Act and that the Complainant was not unduly prejudiced prior to her receipt of her contract of indefinite duration. It also submitted that any breaches of the Act were so trivial, technical, peripheral or otherwise as to come within the de minimis rule.
The Respondent relied on the cases of Archbold –v- CMC (Ireland) Limited TED 05/2003 and Irish Water –v- Hall TED 1/2016.
The Respondent relied on the definition in Section 6 (2) of the Redundancy Payments Acts and Section 6 (2) (a). It submitted that redundancy is accepted as a defence to a claim of Unfair Dismissal under Section 6 (1) of the Unfair Dismissals Act. The Respondent submitted that the dismissal was by way of a genuine redundancy situation. It explained that it informed the Complainant well in advance of the termination of her employment and the reason why it had come to that decision. It had made an application to the Department of Education and Skills for permission to pay redundancy and it received the sanction to make this payment. There was no ulterior motive related to the dismissal.
The Respondent explained that the reason why the Complainant was made redundant was because the programme on which she worked had developed in an ad-hoc manner and there was no replacement available for the retired arts officer to administer or manage the programme. The Respondent considered the programme to be a legacy programme and it would need government sanction to approve the replacement of the arts officer who had retired.
It considered the programme as a shrinking programme and it also pointed out that the Complainant was providing tuition to schools which were not ETB schools. As these schools were not under its remit, it could no longer justify subsidising the shortfall between the tuition fees and other programme costs. It submitted that increasing the rates charged to parents would not address all the reasons why it was not feasible to continue with the programme.
The Respondent submitted that there were no other tutoring vacancies available within the Respondent. It pointed out that the Complainant was not a qualified teacher.
It submitted that its director considered all the options, but it was not possible to avoid the redundancy.
It submitted there was engagement with the Complainant. Evidence was given that there was a meeting held in June 2017 with the Complainant and there was a further meeting on the 23rd of August 2017 with the tutors and other community groups. There was also a meeting on the 17th of May 2018. I was also furnished with a chain of emails May 2018.
The Respondent further explained that it ceased all involvement in the arts programme. The three employees linked to the programme were made redundant. It donated musical instruments that it had purchased to the schools for continued use by their students.
As regards mitigation of loss the Respondent submitted that the Complainant was able to replace her hours by coming to an arrangement directly with some or all the schools participating in the programme.
The Respondent submitted that the Complainant suffered no financial loss and submitted she was in fact financially better off for the last academic year.
The Respondent made a redundancy payment to the Complainant of €8,986.38.
In summary, the Respondent submitted that the decision to terminate the programme was on the basis that:
a) It was not part of the Respondent’s core work,
b) It was not delivered in schools which the Respondent was responsible
c) It had no longer the resources to manage the administration of the programme.
CA-00022178-004 & CA-00022178-005
The Respondent relied on Section 18(2) of the Protection of Employees (Fixed Term) Work Act 2003.
The Respondent submitted that at the date of the termination of employment, the Complainant was a part time employee but not a fixed term employee. The Complainant had no locus standi to pursue a complaint under the Protection of Employees (Fixed Term) Work Act 2003.
Without prejudice to that, the Respondent denied that it discriminated against the Complainant. It submitted that the Complainant had to select a comparable permanent employee or a comparable part time employee on which to ground his complaint of less favourable treatment. The Complainant had not identified a comparator.
It submitted the Complainant did not perform the same work as qualified teachers employed by the Respondent and that teachers could not be regarded as comparable permanent employees.
The Respondent submitted that the Complainant was employed on a programme which was not funded by the Irish Exchequer. It was self-financing and dependent on contributions from students for its continued viability.
The Respondents superannuation scheme is only applicable to approved pensionable positions. This scheme does not apply to tutors in self-financing positions. The Respondent relied on the terms of the Education Sector Superannuation Scheme 2015 Explanatory booklet. The Respondent submitted that the Complainant’s are not entitled to be admitted to the scheme and the Respondent has no authority to enrol the Complainant in the scheme.
The Respondent relied on the High Court decision of Catholic University School –v- Dooley  IEHC 496. It also referred to National University of Ireland –v Ahern  2 I.R. 577. The Respondent submitted that it has no other tutors in employment in self-funding courses that are members of the pension scheme or sick scheme. The Complainant could not compare herself to employees in positions remunerated in funds made available from the Oireachtas. It submitted there was no approval for funding any such self-funding course. The Respondent submitted that it was not appropriate for the Complainant to name a comparator who was remunerated for monies provided by the Oireachtas as the Complainant was not in employment in such a scenario.
Findings and Conclusions:
The Complainant’s entitlement to annual leave is a statutory entitlement governed by section 19 of the Organisation of Working Time Act 1997. The Complainant lodged her claim on the 26th September 2018. Section 27(4) of the Act allows for complaints to be presented within 6 months of the alleged contravention of the Act and Section 27 (5) provides for an extension of that limit by a further 12 months, where reasonable cause has been shown for the Complainant's failure to present the complaint within that time limit. No such application was made to the Court. It follows that the six-month period referred to in the complaint under Section 27(4) of the Act encompasses the period 25th March 2018 to the 26th September 2018 ‘the cognisable period’.
The 6-month period referenced in the complaint encompasses the leave year 2017/2018 and 2018/2019.
I have reviewed the two contracts provided to me relevant to the Complainant. The first was a fixed term contract. The second contract was the contract for indefinite duration. It included a clause stating that the hourly rate is inclusive of holiday pay and is in accordance with the Department of Education and Skills circulars.
I now note that tutors employed by the Respondent are now paid their holidays in advance three times per year. I note that it is common practise despite being in breach of the legislation to increase an hourly rate of pay to take into account holiday entitlements.
The Complainant submitted a social welfare form that made reference to what percentage is the hourly rate of pay increased to take account of holiday entitlements. This form was completed by the Respondent and it allowed the Complainant to claim social welfare for the periods she was not working with the Respondent such as holiday time.
The type of arrangement relied upon by the Respondent does not meet the requirements of the Directive and the Act has been put beyond doubt by the decision of the ECJ in joined cases C-131/04, C. D. Robinson-Steele v R. D. Retail Services Ltd, C-257/04 Michael Jason Clarke v Frank Staddon Ltd and J. C. Caulfield and Others v Hanson Clay Products LtdECR 1 0253. In that case the Court of Justice made it clear that the relevant obligation imposed on an employer under the Directive can only be met by paying an employee in respect holidays at the time the holidays are taken.
27(3) of the Organisation of Working Time Act states that a decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:
(a) declare that the complaint was or, as the case may be, was not well founded,
(b) require the employer to comply with the relevant provision,
(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’ s employment.
I was provided with two contracts relative to the Complainant’s employment. The purpose of the contracts was for the Complainant to be aware of her terms and conditions of employment.
The Act provides that I can award up to four weeks’ remuneration when I determine that section 3 of the Act has not been complied with.
The contract provided was clearly deficient in the clauses highlighted by the Complainant. I determine that the breaches were at a lower end of the spectrum. The issue of her pension was advised in correspondence between the parties.
The issue for decision by me is whether the complainant was unfairly dismissed by the Respondent.
Section 6 of the 1977 Act provides:
6. – (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
... (c ) the redundancy of the employee
Redundancy for the purposes of the 1977 Act is defined with reference to section 7 of the Redundancy Payments Act, 1967;
Section 7(2) sets out that for the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to -
(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or
(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or
(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed ( or had been doing before his dismissal) to be done by other employees or otherwise, or
(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or
(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.
The onus is on the employer to establish that the requirements of Section 7(2)Redundancy Payments Act, 1967 have been met. The Respondent submitted that it had decided to cease the business of which the Complainant was employed. It did cease that side of its business.
Section 5 of the Unfair Dismissals (Amendment) Act 1993 provides that, "...In determining if a dismissal is an unfair dismissal, regard may be had ... to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal".
An employer must act reasonably in taking a decision to dismiss an employee on grounds of redundancy. Selection for redundancy should be fair, transparent and objective and should follow a redundancy procedure (including some form of notification and consultation). Best practice is typically to engage in a two-stage consultation procedure. This should include an explanation about the business need for restructuring, the selection process and consultation about any suitable alternative employment with the company. Employees should be asked to provide input before a final decision is made. Any input or proposals by employees should be considered and responded to. From the evidence adduced in the present case, it was clear that while there was some consultation over a 12-month period, the engagement was ad hoc and wasn’t sufficiently expansive to meet the requirements of fair procedures or reasonableness on the Respondents part. The Respondent made its decision, and this was presented to the Complainant as a final decision. I was not furnished with any evidence of engagement with her as to alternatives to Redundancy.
I note that the Complainant was paid a statutory redundancy payment of €8,986.38 and my award in this complaint reflects same and the efforts that the Complainant made to replace the hours of work she lost by reason of her redundancy. I am not satisfied that the Complainant did enough to meet her requirement under Section 7(2)(c) to mitigate her losses however she had arranged additional work to start in November 2019.
The Complainant was a part time worker working 9 hours per week.
Employees who work part-time have statutory protection in Section 9 of the Protection of Employees (Part-Time Work) Act 2001 in respect of their terms and conditions of employment.
9. Conditions of employment for part-time employees
(1) Subject to subsections (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.
(2) Without prejudice to section 11(2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.
(3) Nothing in subsection (2) shall be construed as affecting the application of a relevant enactment, by virtue of section 8, to a part-time employee.
(4) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a part-time employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable full-time employee.
(5) For the avoidance of doubt, the reference in this section to a comparable full-time employee is a reference to such an employee either of the opposite sex to the part-time employee concerned or of the same sex as him or her.
The Complainant submitted three areas where she was treated less favourably than a full time tutor whose salary was paid for by state funds namely
- Pension entitlements
- Paid leave when the schools she worked in closed outside of normal arrangements
- Uncertified sick leave
Section 7 (2) defines an employee as a comparable employee in relation to the employee firstly mentioned in the definition of “part-time employee” in this section (the “relevant 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,
and references in this Part to a comparable full-time employee in relation to a part-time employee shall be construed accordingly.
Section 7(3) sets out the following are the conditions mentioned in subsection (2)–
(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,
(b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and
(c) the work performed by the relevant part-time employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.
The issue of whether a chosen comparator is an “appropriate” comparator was considered by Dunne J. in Catholic University School v Dooley  4 I.R. 517. The claimants were privately paid part-time teachers who sought to compare themselves with a full-time teacher on an incremental scale whose salary was paid by the Department of Education. The school contended that the appropriate comparator was a full-time privately paid teacher employed directly. Although the chosen comparators came within the definitions of “comparable full-time employees”, Dunne J. concluded that, because the Minister determined the terms and conditions of the Department funded teachers and the school determined the terms and conditions of the privately paid teachers, the Labour Court had fallen into error in finding that the claimants were entitled to choose a full-time Department funded teacher as their comparator. She did not accept that the chosen comparator had “the same type of employment contract or relationship as the claimants with the school”. Hedigan J. came to the same conclusions, as Dunne J., in Blackrock College v Browne  IEHC 607.
The Complainant has sought to distinguish the decision Dunne J. in Catholic University School v Dooley. Her Counsel described her as a “yellow pack” employee and a second-class worker.
The Respondent submitted that the Complainant had not identified a comparator to meet the requirements of the legislation. The Respondent confirmed that self-financing positions were not declared by the Minister to be pensionable positions for the purposes of the Regulations.
Having considered the evidence presented to me, I accept the Respondents submission and find that the Complainant has not identified a comparator to enable her to bring her complaint.
As the Complainant was engaged on a self- funding course she did not have the same type of employment contract or relationship as the Respondent as a comparator paid from Oireachteas funds.
In this complaint I accept the Respondents submission that the Complainant was issued with a contract of indefinite duration which was effective from the 1st January 2017.
The Complainant did not fall within the definition of fixed-term employee as set out in Section 2 of the Protection of Employees (Fixed Term Work) Act 2003.
Accordingly, she had no locus standi to pursue a complaint under the Protection of Employees (Fixed Term Work) Act 2003.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
This complaint is well founded. I find that the Complainant was not provided with paid annual leave and award her compensation of €2,387.00 which is 6 weeks gross wages. I consider this to be just and equitable to reflect that the Complainant did receive a composite rate of pay during her employment and the Respondent has now changed its mode of paying holiday entitlement.
This complaint is well founded. I find the compensation due to the Complainant in this case is three weeks’ remuneration of €1,193.00. As this award is made by way of compensation for a breach of a statutory entitlement and is not in the form of redress for non-payment of wages, it is non-taxable.
This complaint is well founded.
The Complainant is now paid between €30.00 and €40.00 hourly rate. She was in receipt of a composite rate of €44.22 with the Respondent. I note that the Complainant was going to start a new role in November 2019 and with time will have replaced the hours lost due to the termination of her employment with the Respondent.
As the Complainant received a statutory redundancy payment she does not have any financial loss. I award the Complainant the minimum four weeks’ remuneration as set out in Section 7(1)(c)(ii) as is just and equitable considering the circumstances of this case. This amounts to €1,591.92 which is taxable under Revenue rules as a termination of employment payment.
This complaint is not well founded.
This complaint is not well founded.
Dated: 28th November 2019
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Composite rate of pay. Holiday pay. Fair Proceedures. Part time worker. Comparator.