Adjudication Reference: ADJ-00030377
A Senior Tutor
Yvonne O’Callaghan, SIPTU
Peter Flood, IBEC
Dispute Reference No.
Date of Receipt
Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 31/05/2021
Workplace Relations Commission Adjudication Officer: Catherine Byrne
This dispute was submitted to the Workplace Relations Commission (WRC) on November 11th 2020 and, in accordance with section 13 of the Industrial Relations Act 1969, the Director General assigned it to me for adjudication. Due to the closure of the WRC as a result of the Covid 19 pandemic, a hearing was delayed until May 31st 2020. I conducted a hearing on that date, in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 designates the WRC as a body empowered to hold remote hearings. At the hearing, I made enquiries and gave the parties an opportunity to be heard and to present evidence relevant to the dispute.
The employee was represented by Ms Yvonne O’Callaghan of SIPTU and the employer was represented by Mr Peter Flood of IBEC. In this document, I will refer to the employee as “the tutor” and to the employer as “the university.”
The tutor who is the subject of this grievance was an hourly-paid tutor from September 2004 until August 2012. He obtained a teaching fellowship post from September 2012 until April 2013, for which he was paid a salary of €17,611. On May 1st 2013, he returned to his role as a tutor and occasional lecturer and, since then, he works on an hourly-paid basis.
In January 2017, the tutor was awarded a contract of indefinite duration, with a provision that he is entitled to work as a tutor for 49 hours a year at an hourly rate of €41.00 and as an occasional lecturer for 93 hours at a rate of €85.32 per hour. These hours are an average of the hours he worked in the two academic years before 2017-2018.
This dispute concerns the university’s failure to regularise the tutor’s status by appointing him as a full-time teaching fellow on a salary that is comparable with teaching fellowship contracts in the university and aligned to his years of service.
Summary of the Employee’s Case:
It is the employee’s case that he has been working as a teaching fellow since 2012, but that his terms and conditions are not the same as his full-time colleagues. He claims for the hours that he teaches and the exam scripts that he grades and his monthly pay varies according to the hours he works. Although he remains on contract throughout the year, he is not paid for the summer months, when there is no work.
Following the awarding of an indefinite contract of employment in 2017, in the next two academic years, the tutor’s teaching hours were extended beyond the original contact, to the point where he worked between eight and 11 student-facing hours each week – more than the teaching load of full-time colleagues in his department.
In May 2019, following a request to regularise his contract as a full-time teaching fellow, the Head of School informed the tutor that his hours would revert to what they were in his 2017 contract. Arising from this, the tutor initiated the grievance process. A meeting in August 19th resulted in a refusal to grant the tutor’s request to give him a position as a full-time teaching fellow because there was no provision in the budget for such a role. Also, the Head of School informed the tutor that teaching fellow contracts are not intended to be permanent positions but are usually for a specified purpose.
In December 2019, having escalated his grievance in accordance with the process in the university, the tutor received the same response from the College Principal. He was informed that he could apply for the role if the staffing plan and its associated five-year budget included a post for a full-time teaching fellow.
In her submission, Ms O’Callaghan referred to the increased workload necessitated during the Covid 19 period of on-line teaching, for which the tutor received no additional pay. She said that his teaching and related duties have been extended so that he now teaches between eight and 11 hours each week, which, she said, is equivalent to a 40 hour week when preparation and administrative work is included. The university places an emphasis on research-led teaching and the tutor’s research and writing informs his teaching. He does this work in the evenings and at weekends.
The Case for Granting a Full-time Contract
The tutor is seeking an equitable salary commensurate with his work as a tutor, lecturer and module co-ordinator, comparable to his colleagues who undertake the same work. It is his view that he is “de facto” a teaching fellow; his duties in the school are exactly the same as those of a teaching fellow. In 2020, he was nominated for a Teaching Excellence Award, in which the anonymous nominators praised the fact that his classes successfully navigated the sudden transition to online teaching without any diminution in quality.
For the past two academic years, the Head of School requested the tutor to teach classes that amount to between eight and 11 hours each week during the teaching term. In 2017-2018, he worked 141 tutoring hours and 110 hours of lecturing. In 2018-2019, he worked 58.5 tutoring hours and 121 hours of lecturing. These figures show that the tutor undertook more teaching hours than his full-time colleagues who are on annual salaries, not to mention, half-time salaries. The tutor continues to claim a payment for every hour he works and each exam paper that he grades.
The tutor has acted as a module co-ordinator on a co-taught programme for the last three years. In this role, he is responsible for planning and co-ordinating the delivery of the module, for which he received no additional pay until the 2019-2020 academic year, when he was granted payment of one administrative hour per week at the half rate of €42.66.
Although the tutor spends the three summer months dealing with students regarding their grades, updating module information and keeping up to date with research in preparation for next year’s teaching, he receives no pay for these months aside for the hours spent on assignment and exam grading.
In her submission, Ms O’Callaghan provided details of the tutor’s pay for the various components of his job. His gross earnings over the last three years were also provided:
Other disadvantages pointed out by Ms O’Callaghan are the fact that the university does not contribute to the tutor’s pension, he is not eligible for the Tax Saver Travel Scheme and he receives no additional pay for the administrative duties that are essential to his role. The tutor is excluded from the performance review process and, although he does research work, he is not entitled to research leave. Finally, he is not permitted to supervise PhD students.
Following his initiation of the grievance process, in December 2019, the College Principal informed the tutor that the schools create appointments on the basis of teaching needs. Recruitment of staff is based on a five-year plan in accordance with the academic needs of a school. New posts must be included in the plan by the Head of School and are dependent on the needs of the school as determined by the Head and College Principal. If a teaching fellow role was advertised, the tutor would be free to apply. The tutor argues that there is no reason why a budget can’t be amended before or after its commencement. His contract of indefinite duration was awarded after July 2016, when he was informed that his contract would not be renewed. The school’s budget was not raised as an issue during the months before his statutory entitlement to a contract of indefinite duration was recognised.
The practice of reactive hiring in the university shows that the college has a certain budget for contingent recruitment. Also, there is a mechanism for teaching staff to move from 0.5 to 1.0 contracts. Over the last 18 months, more than 10 faculty members have been promoted to associate and full professor grades – demonstrating that there is some flexibility in the budgets. The tutor believes that there is no budgetary impediment to providing him with a revised set of terms and conditions.
With regard to the university’s position that teaching fellow contracts are not intended to be permanent and are usually for a specified purpose, the tutor argues that the position exists in the school where he works for permanent teaching fellows, including one position of a senior teaching and research fellow. He submitted that there is no reason why he should not be granted the same status.
With regard to the university’s argument that teaching fellow contracts are generally for a specified purpose, Ms O’Callaghan pointed out that the tutor’s original teaching fellowship from 2012 – 2013 was for the purpose of taking over the teaching of an assistant professor who took early retirement in February 2012. His role was not advertised by the college and the tutor has covered his teaching hours for the past eight and a half years. This has been the specific purpose of his contract.
It is the tutor’s position that the School has no need to appoint a teaching fellow / lecturer in medieval studies as long as he continues to undertake his current workload under his current terms and conditions. If he resigned, the school would need to appoint a full-time lecturer to take over his teaching hours.
The tutor’s position in the university is not simply his job; he considers his teaching there to be a career. He claims that he brings immense value to the school, but that he is not valued by his employer, or equitably treated for his work.
The tutor argues that there is no distinction between his duties as a tutor, lecturer and module co-ordinator and the work of his colleagues on a teaching fellowship contract, as they undertake exactly the same work to the same professional standard.
The tutor said that he is an integral member of the three-person medieval studies team, where he teaches more hours than his colleagues, but is paid a fraction of what they are paid. He said that the university has benefited from this over the last eight years.
For the reasons set out, the tutor is seeking the regularisation of his terms and conditions of employment so that he is paid a salary commensurate with the work he does and comparable to colleagues doing the same work. He asked that I remedy the inequity by recommending that he is granted equal pay for his work with immediate effect.
Summary of the Employer’s Case:
The role under scrutiny is that of a senior tutor / occasional lecturer and it is the employer’s case that this is a role normally carried out by PhD students and that it is not seen by the university as long-term or permanent. The tutor is seeking to be paid as a teaching fellow on the grounds that this category is paid more for working less hours. For the university, Mr Flood disputed the assertion that teaching fellows work shorter hours than the tutor, as they must deliver a 20-credit stage 3 online module and they must complete the associated administrative work.
The tutor’s claim for a salary of €40,000 is rejected by the university, as the comparison with the role of a teaching fellow is not based on a like for like comparison. These posts are intended to be temporary in nature, are generally specific purpose contracts to cover the teaching hours of academics who are on leave. The post-holders are not expected to carry out research.
In May 2019, during representations regarding his status, the tutor was informed that his request to be considered as a teaching fellow could only be granted following an application for a vacancy. During the grievance process, he was informed that he was required to provide two hours of tutorials and four hours of occasional lecturing each week during the academic term and that his current teaching load was too high. When he was asked to select some modules to drop, the tutor raised a grievance. The outcome of the grievance process has been set out in the section above under the heading, “Summary of the Employee’s Case.”
It is the university’s position that teaching fellow posts are temporary posts and that, currently, there is no requirement for a teaching fellow post in the Medieval Studies Department. If a post was created, the tutor is free to apply, which he has done successfully in the past.
Mr Flood asked that I reject the tutor’s claim for a permanent position as a teaching fellow.
Findings and Conclusions:
Having considered this matter, it is apparent that the status of the tutor on a contract of indefinite duration is something not planned and probably not wanted by the university. It appears that the role of a senior tutor / occasional lecturer is normally taken up by PhD students on a temporary basis until they find alternative academic positions. In their shared discomfort with the current situation, the parties have something in common.
The tutor faces a number of barriers to achieving his aim of a permanent position as a teaching fellow:
1. The university intends that the role of a teaching fellow is a temporary position, generally for a specified purpose and the school where the tutor works and the human resources department do not intend to move away from this designation. I accept that there may be some anomalies to this position in the university, but such anomalies are not an argument for moving away from the accepted position that the role of a teaching fellow is a temporary job.
2. The representatives of the university said that if the tutor was to leave his job, a full-time role as a tutor or medieval studies would not be created, and the hours that he would vacate would be offered to a PhD student or students.
3. There is no current vacancy for a teaching fellow in medieval studies, or for a lecturer or an assistant lecturer in medieval studies. It seems that there is no short- or medium-term intention to create such a vacancy.
4. The university will not simply “convert” the tutor’s job into a teaching fellowship role. I accept that, apart from the budgetary constraints, from an industrial relations perspective, this would be highly problematic.
Although the hearing of this complaint was online, and, compared to an in-person meeting, it is not so easy to fully appreciate the commitment of individuals to a particular issue, it was clear to me that the tutor loves his subject, is committed to his students and makes a valuable contribution to the department in which he works. Despite his very meagre earnings after more than 15 years of employment, he wants to continue in his job.
From the perspective of finding a resolution, I cannot recommend the appointment of the tutor to a teaching fellow position, in circumstances where the university is opposed to such a concept. It is apparent to me that the only feasible resolution is that that he is appointed to a half-time or full-time lecturer or assistant lecturer position. It is further apparent that such an appointment can only arise from an open advertisement for a vacancy.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that, in the next resource-planning session for the school where the tutor works, that serious consideration is given to the opening of a vacancy for a lecturer in the subject that he teaches.
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Check complainant and respondent