ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00031629
Aidan Kenny Teachers' Union of Ireland (TUI)
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 27/05/2021
Workplace Relations Commission Adjudication Officer: Caroline McEnery
In accordance with Section 13 of the Industrial Relations Acts 1969 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute. The claim herein was heard remotely in circumstances where a general restriction, on face-to-face hearings arising out of the COVID19 pandemic, was in place.
The Complainant commenced work on 21 September 2016. The Complainant’s grievance is lodged as a Stage 4 of the nationally agreed grievance procedures for the sector. On behalf of the Complainant the union’s local branch pursued the case up to Stage 3 with the Respondent. The matter remained unresolved and the union referred it to the WRC Conciliation’s Services and subsequently on behalf of the Complainant the union requested WRC Adjudication on the matters below:
The Respondent’s failure to recognise all relevant experience when determining the starting salary increment point of the Complainant for the post of Assistant Lecturer, thereby, starting the Complainant on a lower increment point which had adversely affected his income.
The Respondent’s failure to adhere to the terms of the nationally agreed grievance procedures and thereby denying their members fair procedure and due process, particularly; a) not providing a decision after the local Stage 3 grievance meeting; b) refusing to provide the Complainant with information requested (had to use a Freedom of Information request); c) refusing to engage in a referral to the WRC Conciliation service with a view to resolving the matter. The resolution sought by the Complainant is, recognition of all relevant experience and to be placed on increment point 2 of the Assistant Lecture salary scale from commencement date in 2016 and the appropriate payment to be made. A commitment from the Respondent that it would adhere to the terms of the nationally agreed grievance procedure in future cases that the Complainant may bring. In recognition of the unfair treatment experienced by the Complainant of the Respondent makes an appropriate settlement offer. The Respondent reimburses the cost of the FOI request.
The Respondent state that they have applied the correct point of the scale in this case and it is in keeping with all the relevant agreements and their custom and practice.
Summary of Complainant’s Case:
The Complainant’s representative stated that this was an individual grievance pursued by the Complainant against the Respondent in accordance with the National Agreed Grievance Procedures for the Institute’s Sector.
The Complainant’s representative stated that Section 3, states, ‘The Grievance Procedure provides a comprehensive method for the resolution of grievances in the interests of the avoidance of conflict. Issues raised under it will be processed in accordance with the principles of full consultation during the process and in accordance with the general principles of natural justice and fair procedures.’
Individual Grievance, Section 8.1 states, ‘A grievance may be defined as a complaint which an employee has concerning his/her terms and conditions, working environment, or working relationships’.
Individual grievance Stage 4, Section 8.9 states, ‘If the matter remains unresolved to the satisfaction of the party invoking the procedure, the employee, or the Union on behalf of the employee will have the option of referring the matter to the Labour Relations Commission/Rights Commissioner Service/Conciliation service of the Labour Relations Commission or an alternative agreed third party as soon as practicable’.
The Complainant’s representative stated that the individual grievance was pursued on behalf of the Complainant by the local branch with the Respondent. A Stage 1 meeting was held with the Respondent on the 5 May 2020, the Respondent’s decision was not accepted, and the matter was progressed. A Stage 3 meeting was held with the Respondent on the 9 September 2020, the Respondent did not provide a formal decision as per the terms of the grievance procedure.
The Complainant’s representative stated on behalf of the Complainant the union referred the matter as a Stage 4 individual Grievance to the WRC Conciliation Service on the 24 November 2020. The Respondent informed the WRC on the 11 December 2020 that it would not attend as the internal procedure had not concluded.
The Complainant’s representative stated on behalf of the Complainant the matter was referred as a Stage 4 individual grievance to the WRC Adjudication service on the 20 January 2021. The WRC informed the Union on the 3 March 2021 that the Respondent had not objected, and that the matter would be processed.
The Complainant’s representative stated the Respondent’s failure to recognise all relevant experience when determining the starting salary increment point of the Complainant for the post of Assistant Lecturer, thereby starting the Complainant on a lower increment point which had adversely affected his income.
The Complainant’s representative stated the Respondent’s failure to adhere to the terms of the nationally agreed grievance procedures and thereby denying the Complainant fair procedure and due process, particularly: not providing a decision after the local stage 3 grievance meeting, refusing to provide the Complainant with information requested and refusing to engage in a referral to the WRC Conciliation service with a view to resolving the matter.
The Complainant’s representative stated the Complainant graduated with a degree and was awarded a bursary to undertake post graduate studies for a two-year Masters’ degree in the Institute. As part of the bursary arrangement the Complainant was to engage in research and other relevant academic duties.
The Complainant’s representative stated that the Respondent appointed the worker as a Research Assistant in the Institute on fixed-term contracts from 2014 to 2016. As well as research, the Respondent directed the Complainant to undertake other relevant academic duties.
The Complainant’s representative stated that during the period 2014 to 2016 the Complainant was also employed by the Institute as a part-time Assistant Lecturer, carrying out the relevant academic duties and paid the nationally agreed part-time rate.
The Complainant’s representative stated in 2016 the Complainant was successful in obtaining an Assistant Lecturer position in the Institute on a fixed-term contact. The Union had agreed a national contract for Assistant Lecturers for the sector. The Institute deemed the Complainant had the required qualifications for the position and the required relevant experience post minimum qualification. In this case the required relevant experience was set at three years after the minimum qualification was achieved.
The Complainant’s representative stated that to calculate the salary point the Institute used both local practice and Circular Letter IT-01-05 ‘Conditions for Determining Starting Salary and for the Award of Increments on Appointment or Promotion to Permanent, Temporary Wholetime or Pro-Rata Part-Time Lecturing Positions in Institutes of Technology’. The Circular allowed institutes to award additional increments to a worker who had relevant experience above and beyond the required minimum.
The Complainant’s representative stated the Institute used the following to calculate relevant experience post minimum qualifications. Minimum qualification achieved 2012, count relevant academic experience from this point. Master’s degree (two years) allowed one year for relevant academic experience.
The Complainant’s representative stated an Assistant Researcher (two years) allowed two years for relevant academic experience. Three years relevant academic experience was required for post, as this was achieved the Complainant was placed on point one of the salary scale.
The Complainant’s representative stated the Complainant, however, contended the Institute’s calculation was not correct relating to the calculation of relevant experience for the Master programme. The programme ran for two years, however the Institute only allowed for one year in its calculation. The Complainant contends that during the Master programme he carried out relevant academic duties as directed by the Institute and set out in the bursary arrangement. The Complainant considered it was unfair of the Institute to reduce the two years relevant academic experience during the Masters to one-year relevant experience.
The Complainant’s representative stated in normal circumstances Masters programmes were usually of one year duration, in some cases 1 year and several months. The Institute had an established practice of allowing one-year relevant experience for Masters programmes. In this case the Masters programme was for two years as directed by the Institute, however the Institute decided to allow only one year for relevant academic experience. The Complainant considered this to be unfair as the Institute was not recognising his full two years relevant academic experience. If the Institute did recognise the two years relevant experience, then the member would have achieved four years relative experience, and this would have meant that the member was placed on point two of the scale in 2016, rather than point one.
The Complainant’s representative stated the Respondent never provided a formal response to the Stage 3 individual grievance. On the 23 October 2020 the Institute advised that the two managers could not agree a position on the Stage 3 grievance.
The Complainant’s representative stated as the Institute could not agree a position it proposed to collapse the process and assign two other managers.
The Complainant’s representative stated a Freedom of Information request was made, and the documents received demonstrated that the Respondent’s two nominations had made two different decisions, one had stated the Complainant was correctly placed on point 1 of the scale and had 3 years relevant experience, however the other manager stated the calculation was not correct and the Complainant had gained four years’ experience (2 for the two Masters) and the salary should have started at point 2 of the scale.
The Complainant’s representative stated in relation to adhering to the nationally agreed grievance procedure the Respondent failed to provide the Stage 3 decision in writing within the agreed timeframe set out in the Section 8.4. For all stages in the formal process, management would write to the union outlining its position, normally within six working days following the meeting. To date the Respondent had not complied with the requirement of the grievance procedure in this case.
The Complainant’s representative stated the Respondent also failed to comply with Section 8.8 which stated; If the matter is not resolved at the meeting or fails to be resolved or progressed to the satisfaction of the employee, the matter may be referred to a Stage 4 meeting by the employee or the Union on behalf of the employee where possible within six working days following management’s response or Stage 4 may be invoked immediately and subsequently confirmed in writing.
The Complainant’s representative stated the Respondent’s failure to comply with a key principle of the grievance procedure Section 3.1 which stated, ‘All relevant documentation concerning the grievance will be made available at each of the meetings at each of the stages of the procedure’. The Complainant was not provided with requested information and had to resort to making a FOI request to obtain relevant information about his case from the Respondent.
The Complainant’s representative stated the resolution sought by the Complaint is, recognition of all relevant academic experience (two years for the Master and 2 years for the Assistant research role) and to be placed on increment point 2 of the Assistant Lecture salary scale from commencement date in 2016 and the appropriate payments to be made.
The Complainant’s representative stated a commitment from the Respondent that it would adhere to the terms of the nationally agreed grievance procedures in future cases that he may bring and in recognition of the unfair treatment experienced by the Complainant the Respondent make an appropriate settlement offer.
Summary of Respondent’s Case:
The Respondent stated in April 2020 the Teachers Union of Ireland (the “TUI”) raised a grievance on behalf of the Complainant. The grievance related to the application of circular letter 01/05. Circular letter 01/05 deals with the conditions for determining starting salary and for the awards of increments on appointment or promotion for lecturing staff. The grievance was heard at Stage 1 and a decision given. The TUI rejected the Stage 1 decision and by agreement the grievance was heard at Stage 3.
The Respondent stated the Stage 3 decision makers were not able to come to an agreed decision. By way of resolution the Institute proposed the grievance be heard again with different decision makers. The TUI rejected the proposal and referred the grievance to the WRC.
The Respondent stated prior to the Complainant being employed as an Assistant Lecturer the Complainant was employed as a Researcher, employment dates as follows:
1 September 2014 – 1 May 2015 – Research Assistant
2 May 2015 – 15 December 2015 – Researcher
16 December 2015 – 25 September 2016 – Researcher
26 September 2016 – to date – Assistant Lecturer
The Respondent stated in September 2016, the Complainant applied, via open competition, for an Assistant Lecturer post. The minimum entry for the post was as follows:
Appropriate Honours primary degree (second class or higher) or equivalent. And
Three years relevant post graduate experience, i.e. three years relevant experience having gained the qualifications. The closing date for the post was 2 September 2016.
The Respondent stated the Complainant was successful at interview and offered the post of Assistant Lecturer, commencing on 26 September 2016.
The Respondent stated in determining starting salary the Institute referred to section 2 and 3 of CL 01/05, which deals with credit for relevant experience.
The Respondent confirmed the relevant sections state:
“Subject to what is set out below, the normal expectation is that appointees will be admitted to the relevant salary scale at the minimum point of the scale. In determining starting salary, incremental credit, up to a maximum of five increments may be awarded where the appointee has relevant experience over and above the minimum required for the appointment. No more than one increment may be awarded for each year of such experience. However, in the case of lecturing experience in an equivalent post (i.e. a post at the same grade or higher), credit shall be given for the full number of years.
The Respondent stated in the case of other teaching experience, credit may be given depending on its relevance to the post in question. The level of credit is to be determined by the Institute. “
The circular allows Institutes/TUs to determine whether to appoint above the minimum of the scale.
The closing date for the post is used to determine the number of relevant experience years.
The Institute consistently applies circular 01/05 as follows:
Relevant Experience in Years Point of Scale
(since meeting the min quals)
3 years Point 1
4 years Point 2
5 years Point 3
6 years Point 4
7 years Point 5
8 years Point 6
9 years plus Only where salary in previous position is higher than point 6
The Respondent stated relevant experience is normally considered to be previous work experience. However, the Institute determined that certain periods of study over and above the minimum qualifications may be awarded credit. The Institute had consistently applied the following credits for masters and PhDs.
Masters = 12 months relevant experience/credit
PHD = 36 months relevant experience/credit
The Respondent stated the determination by the Institute was outside the norm for the sector. The majority of other Institutes do not award credit for Masters and only some award credit for PhDs.
The Respondent stated the Complainant gained his degree on 28 September 2012.
The closing date of the post was 2 September 2016. The Complainant commenced employment as an Assistant Lecturer on 26 September 2016.
The maximum relevant experience the Complainant could have had at the closing date was under four years which resulted in a starting salary of point 1.
In line with the circular the complainant starting salary was calculated as follows:
Qualification Conferred Date Study Dates
Bachelor of Science xxxxx
Masters xxxxx 6 September 2012- 6 September 2014
Relevant Experience Job Description Months
1 September 2014 – Research Assistant 8 months
1 May 2015
5 May 2015 – Researcher 7.5 months
15 December 2015
16 December 2015 – Researcher 8.5 months
2 September 2016
(closing date of
application) Total Years relevant experience = 24 months
Credit for Masters 12 months
Total Credit at closing date 36 months or 3 years
Starting Salary 3 years = Point 1
The Respondent stated in addition to the Complainant’s full time research contract, he delivered part-time hours in the academic year 14/15 (8 hours) and 15/16 (67 hours). Payment was made at the casual part-time hourly rate. These hours are deemed to be relevant experience and in addition to his full-time research contracts, the maximum credit was given for academic years 14/15 and 15/16. This was in line with the circular which allowed for no more than one increment for each year of relevant experience (Section Cl 01/05)
Complainant’s Masters Study Period (6th September 2012 – 6th September 2014). The Respondent stated the Complainant graduated from his degree on 28 September 2012. Following his degree, he applied and was successful in joining a Postgraduate Research Programme with the Institute which included a bursary of €500 per month.
The Respondent stated the postgraduate contract stated that the Complainant was expected to pursue his studies on a full-time basis, on normal working days, between 9am and 5pm.
Section 6 of the contract which dealt with Educational Development stated:
“Registered postgraduate students who are in receipt of an Institute bursary will be expected to undertake teaching, tutoring, demonstrating or other duties for up to a maximum of 6 hours per week per academic year for the Institute as part of their overall educational development. In general, assigned duties will be a mixture of teaching, tutoring, etc.
No payment will be made for these assigned duties within this 6-hour period as they are deemed part of their academic development.
Educational development work is directly as a result of their studies and does not in any way confer employment rights within the Institute. You acknowledge that this agreement is not a contract of employment and does not confer any such right....”
The Respondent stated in addition to his postgraduate studies, the Institute’s payroll records showed the Complainant worked 10 part-time hours in February 2013.
The Respondent stated a part-time Lecturer was not the equivalent of an Assistant Lecturer grade. The minimum entry for a part-time Lecturer was a relevant honours degree. The minimum entry for an Assistant Lecturer grade was a relevant honours degree plus three years relevant experience and carried a range of duties in addition to teaching.
In relation to comparators: Circular letter 01/05 allows Institutes/TUs to determine whether to give additional increment to new starters. Institute/TUs can decide to appoint at point 1 only, irrelevant of previous experience. The only stipulation within the circular is for previous lecturing experience in an equivalent (i.e., a post at the same grade or higher) post. In this case the post is an Assistant Lecturer.
The Respondent stated that the Institute, to ensure a fair and consistent approach, applied credit for additional qualifications in the form of twelve months for a master’s degree and thirty-six months for a PhD. This approach had been applied consistently to all new joiners. The Institute had employed a large amount of lecturing staff since the circular was introduced in 2005, many of whom had benefited from the credit given to masters and PhD study. The majority of Institutes do not provide for master’s credit in determining starting salary.
The failure to adhere to nationally agreed grievance procedures was addressed. The Respondent stated the grievance was heard at Stage I and a decision given. The TUI rejected the decision and by agreement the grievance was heard at Stage 3.
The Respondent stated the Stage 3 decision makers were not able to come to an agreed decision. By way of resolution the Institute proposed the grievance be heard again with different decision makers.
The TUI rejected the proposal and referred the grievance to the WRC.
The Respondent stated the Institute did not enter conciliation via the WRC as they considered the issue which would affect several other staff members who had received the same credit for their masters or PhD.
The Respondent stated the Institute did not refuse to provide the Complainant with information and the Complainant made a request for information on 23 November 2020. The Institute was considering the request when a FOI request was submitted on 14 December 2020. At no stage was there a refusal to provide information to the Complainant.
The Respondent stated the Institute applied Circular 01/05 to the Complainant in September 2016. The Complainant did not bring a grievance until April 2020, three years and seven months after the starting salary was determined.
The Respondent stated the Department of Education, via Circular 01/05, informed the Institute of the criteria that may be considered in determining starting salaries. The circular allows for the Institute to commence new starters at point 1 of the salary scale.
The Respondent stated experience that can be deemed relevant was a matter for each individual Institute/TU. The only guidance within the circular related to lecturing experience in an equivalent post (i.e., “a post at the same grade or higher.”). In this case, the post was that of Assistant Lecturer. The Complainant had no previous employment as an Assistant Lecturer. With respect to all other relevant experience, the circular stated “In the case of other experience the level of credit is to be determined by the Institute”.
The Respondent stated the Institute had the right to determine what it deems to be relevant experience. The Institute determined the period whilst studying for a masters to be equal to 12 months relevant experience and had applied this determination consistently to new staff members.
The Respondent stated if the Institute were to determine that the Complainant should receive more than twelve months credit for his masters this would have likely resulted in claims from other staff members within the Institute and within the Institute/TU sector who are also covered under Circular 01/05.
The Respondent stated the Institute in awarding twelve (12) months credit for a master’s degree was giving more than the norm within the sector.
The Respondent stated the Complainant signed postgraduate contracts confirming he was a student during the period. The contract specifically referred to any work carried out as “educational development”.
Findings and Conclusions:
Section 13 (1) and (2) of Industrial Relations Act, 1990 states the below.
13.- (1) The Minister may from time to time appoint a person who shall be known as and is in this Act referred to as a rights commissioner to carry out the functions assigned to him by this section.
13. - (2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.
(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—
(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and
(ii) notify the Court of the recommendation.
(b) A rights commissioner shall not investigate a trade dispute—
(i) if the Court has made a recommendation in relation to the dispute, or
(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.
Accordingly, I issue my findings and recommendations based on all the information presented by the parties prior to and during the hearing. The grievance procedure was not finalised by the Respondent and no outcome was given to the Complainant as two decision makers reached different opinions and could not agree. The Respondents reference to Stage 3 grievance process was that there was no decision from Stage 3 as the two decision makers couldn’t agree. They offered to re-run the grievance process again not accepted by TUI. Therefore, the matter is left unresolved despite them offering to have the grievance reheard by new investigators which I do acknowledge.
The Complainant stated they were put on the wrong point of their current pay grade as relevant experience during their 2 years masters was not taken into account correctly and was only given as credit for 1 year.
I acknowledge that the Respondent stated there are knock on implications of this decision for others employed at that time. They stated they met the required FOI and it was not a refusal.
The crux of this issue is the fact there is a nationally agreed circular. The Respondent can appoint parties on Point 1 of the pay scale; however, they do give credit to relevant experience also.
The Respondent stated that the period being contested was a period of study not a period of work. They give credit of 1 year for a Masters regardless of duration and 3 years credit for a PhD. The TUI on behalf of the Complainant have requested that the institute give 2 years credit for his Masters.
The Respondent stated that in the Complainant’s contract for the period of his study Section 6 of the post grad contract state no payment would be made for work done linked to the studies and was not employment it was a period of study. They also stated that masters’ programmes vary due to duration and the duration doesn’t impact the decision of scale it’s given based on qualification. I therefore find that they applied the circular consistently to the Complainant as they do to all new starters and as a result would have a knock-on effect to apply it differently to the Complainant and is not consistent to their custom and practice either if they were to apply it as requested by the Respondent.
Section 13 (1) and (2) of the Industrial Relations Acts, 1946 – 2015 requires that I make a recommendation in relation to the dispute.
The crux of this issue was related to the time the Complainant spent during a post grad research programme. His contract for that period clearly stated “No payment will be made for these assigned duties within this 6-hour period as they are deemed part of their academic development. Educational development work is directly as a result of your studies and does not in any way confer employment rights within the Institute. You acknowledge that this agreement is not a contract of employment and does not confer any such rights. All educational development work will cease immediately on completion of your studies”.
The Respondent were required to follow the relevant circular and they have done this and consistently apply 1 years’ experience credit per master’s study period. This also reflects their custom and practice.
Therefore, I recommend the process, procedure and practice is correctly applied by the Respondent and the Complainant accept they are on the correct scale accordingly.
Dated: 20th July 2021
Workplace Relations Commission Adjudication Officer: Caroline McEnery