ADJUDICATION OFFICER DECISION
A music teacher
An Education and Board
Stephen O’ Sullivan BL instructed by
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 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 2010. He worked between twelve and thirteen hours each week. She tutored students in playing brass instruments.
His employment ended on the 22nd of June 2018.
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 he was not aware of what scale was used or if he was on different scales.
His complaint was that his hourly rate of pay was inclusive of holiday pay and this was that it was in breach of the Organisation of Working Time Act.
He explained that he was not paid for the days that the schools in which he worked was closed. Examples of these were election days and during storm Ophelia.
He 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.
His complaint was that he started employment with the Respondent in 2010 and while he did receive two fixed term contracts, he did receive a contract of indefinite duration with a commencement date of the 1st January 2017. He had been an employee for 7 years at that stage.
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 he received a contract of indefinite duration in March 2018 and it was retrospective to the 1st of January 2017.
He 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 his contract of employment (request for written statement of average hourly rate)
c) Section 3 (k) (ii) was not in his contract of employment (pension and pension scheme)
d) Section 3 (m) was not in his contract of employment (collective agreement).
This claim was withdrawn at the hearing of the case.
This was a complaint under the Protection of Employees (Part Time Work) Act 2001. The Complainant submitted that he was afforded less favourable treatment as a part time employee.
The Complainant explained that he was not allowed access to a pension scheme and he 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.
He also explained how he was not paid for days where the schools in which he worked were closed. He compared himself to permanent teachers who were paid.
He further explained how he 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 he was afforded less favourable treatment as per the grounds outlined for CA-00022178-004. He acknowledged that he 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. He 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 his annual leave entitlement.
Tutors are paid based on an hourly rate. There are no salary scales applicable to tutors. The Complainant worked 12.5 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 €552.75 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 he worked in a leave year throughout his employment as holiday pay. The Respondent acknowledged that the Complainant was entitled in accordance with Section 20 of the 1997 Act to be paid his 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.
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 his receipt of his 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.
This complaint was withdrawn.
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 himself 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 his 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 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.
(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 his 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 his pension was advised in correspondence between the parties.
This complaint was withdrawn at the hearing.
The Complainant was a part time worker working 12.5 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.
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. His Counsel described him 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 submissions and find that the Complainant has not identified a comparator to enable him to bring his complaint.
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, he 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 him compensation of €3,316.50 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 his 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 = €1,658.25. 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 with withdrawn at the hearing.
This complaint is not well founded.
This complaint is not well founded.
Workplace Relations Commission Adjudication Officer:
Composite rate of pay. Holiday pay. Comparator. Funds paid by the Oireachtas.