ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00030013
Represented by the Irish Federation of University Teachers
Represented by Barry Walsh, Fieldfisher
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: 13/04/2021
Workplace Relations Commission Adjudication Officer: Valerie Murtagh
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 hearing took place by way of remote means on 13 April 2021.
Summary of Complainant’s Case:
The worker is a Lecturer at the respondent organisation. His claim is that he is performing a full workload but only being remunerated for .75 of a role. The worker outlines that he has taught at the university since 2003 at both undergraduate and postgraduate level. He submits that he has considerable research experience and an extensive publication record including seven books and over 100 learned papers.
The worker states that himself and another colleague have been involved in an ongoing dispute with the employer on this matter for a number of years. The union representative outlines that in March 2018, the worker and his colleague argued that there had been an ”illegal deduction” made to their pay; this has been resolved. In the current case, the worker is claiming that he is undertaking a full lecturing role within his department and that he should be renumerated accordingly.
The union representative states that in March 2017, the WRC Adjudicator pointed out that there were dangers attached to an IRO deciding on appropriate workloads. This point was accepted by both sides. There was an understanding that a dispute of this nature would be more correctly before the adjudication process that was to be established under Recommendation 7(vi) of the “Report to the Minister for Education and Skills of the Chairperson of the Expert Group on Fixed-Term and Part-Time Employment in Lecturing in Third Level Education in Ireland”, aka the “Cush Report”.
Recommendation 7 (vi) stated “I recommend that the existing system of dispute resolution which pertains for the second-level sector and for the Institutes of Technology, whereby one individual is responsible for dispute resolution, be extended to the Universities.” The union representative outlined the “dispute resolution” referred to in recommendation 7(vi) related to disputes connected with securing contracts of indefinite duration and increasing contracted hours, however it has since been made clear that the recommendations contained within the Report and the scope under which the agreed “Cush” Adjudicator can operate does not extend to addressing disputes such as this. Paragraph 17 of the “Cush” Adjudicator’s Report of Findings of 7 July 2020 determined that the Adjudicator accepted that he had no jurisdiction to rule on this matter; “Nonetheless, I cannot accept a jurisdiction that I do not have. My jurisdiction is derived from the agreement reached between the Unions and IUA and it is clearly confined to adjudicating on disputes concerning the recommendations of the Cush Report.”
The union representative highlights that it should be noted that in paragraph 16, the Adjudicator stated; “It seems to be somewhat disingenuous and unfair that the position now taken by the University was not advanced at the time that the proposal to withdraw the claim from the WRC, and proceed with a referral to this process when it was established, was originally made. I have no doubt that had the University then raised the objection now replied upon, the Union would not have withdrawn the claim from the WRC and the matter would have proceeded to a decision by the Adjudication Officer. I have addressed this point further in my conclusion and decision.”
The union representative states that the within claim is that the worker and his work colleague were undertaking a full workload but only are remunerated on a .75 whole time equivalent basis. The union representative states that it supported their argument making the point that it was notorious within their department that these two Academics undertake a full workload, by making reference to the fact that when additional “hours of work” had come available that neither the worker or his colleague were offered this work, in the first instance, as would be best practice and as laid out in recommendation 7 (iii) of the “Cush” report: I recommend that in advance of advertising available hours in a particular course, the relevant University or Institute of Technology should carry out a review to ascertain whether there are existing qualified lecturers on CIDs or pro rata fixed-term contracts for less than full hours who have the necessary qualifications to teach the course and who could benefit by the augmentation of their existing contract. If so, the extra available hours ought to be offered first to such lecturers before being advertised generally.”
The union representative states that as can be seen from the “Cush” Adjudicator’s Report, the Adjudicator finds that it is beyond his jurisdiction to rule in relation to a 0.5 role that was filled within the Department in June of 2019 on the basis that the complaint that led to the Adjudicator’s engaging in this process was not directly linked to the employer’s failure to consider recommendation 7(iii) when filling this vacancy, a point that the Union accept. However the union representative states that the core point that it is trying to drive home by making reference to this 0.5 role was that the University did not consider offering to share this 0.5 role between the two members who were clearly in dispute at the time that the role filled was because the University and more particularly the Department were well aware that the two disputants were already undertaking full workloads.
The Union representative submits that the worker and his colleague conducted a comprehensive analysis of their workload and compared their load with that of their colleagues. This comprehensive submission was provided to the Employee Relations Manager, however said Manager failed to remedy the matter despite being provided with evidence that the worker undertakes a full workload. The Union representative submits that he sent an e-mail to the Employee Relations Manager on 18 August 2020 stating “Would the University [my emphasis] be agreeable to engaging an agreed upon “Independent Expert” at this point saving all sides from the considerable effort attached to presenting cases to the WRC, not to mention time delays.” The Union representative states that this request was denied and it was informed that the matter was exhausted locally. The Union requests that the worker be afforded a 100% Lecturing contract made on a retrospective basis to the start of the 2017/2018 academic year.
Summary of Respondent’s Case:
The employer states that the worker is a permanent part-time employee (or a .75 FTE) of the respondent organisation. The employer outlines that while the worker believes he should be a full-time employee (1FTE) this is strongly contested by the employer. The employer states that in the “2021 WRC Claim” form, the worker claims that “I am being remunerated as a .75 Lecturer despite undertaking a 100% workload. This matter has been in dispute for several years… and through various other processes. My case is that I should be remunerated as a full-time Lecturer in X University [my emphasis].” The employer submits that it never actually received the claim form from the WRC and it received the above information from e-mail correspondence from the worker’s union. The employer states that the union added in its e-mail to the respondent that “I trust that this comes as no surprise to you…”. The employer maintains that the 2021 WRC claim is essentially identical to Workplace Relations Complaints by the worker on 14 December 2017 under Section 13 of the Industrial Relations Act, 1969 and the Payment of Wages Act. The employer submits that the fact is that the claims are essentially identical is borne out by comments set out in the above paragraph. The employer states that the 2017 WRC Claim was withdrawn by the worker after a brief initial hearing before the Adjudication Officer on the basis that the worker would pursue other options.
The employer outlines that an identical and co-joined claim was also taken by another employee ML in 2017 and at all times until the point of this hearing, the worker and ML have effectively acted in concert in bringing the various complaints. The employer states that this is relevant to one of its preliminary objections below. The employer outlines a brief chronology as follows;
· In 2017, the employer issued the worker with a .75 FTE contract. This was an increase on the .5 FTE contract that the worker was initially employed under. The previous .5 FTE represented what the University felt was the total contribution of the work. However following local discussions with the worker and ML, the University increased the FTE to .75 which was to comprehend their total contribution to the University.
· This was to recognise all the work that the worker was being engaged to carry out. The worker refused to sign this contract but the employer has paid the worker under this contract since then.
· The 2017 WRC Claim hearing was held on 27 March 2018 under the Payment of Wages Act and the IR Acts. It was subsequently agreed that the 2017 WRC Claim would be withdrawn and instead entered into a process called the Cush Process.
· The Cush Process was established following the Haddington Road Agreement where an Expert Group was established under the terms of the Agreement “ to consider and report on the level of fixed-term and part-time employment in lecturing”. The report from this Expert Group (the Cush Report, May 2016) sets out a number of practical recommendations. The Universities have agreed a protocol for implementation of the Cush Report with the Irish Federations of University Teachers (IFUT) including referrals, where required, to an Independent Adjudicator.
· On 16 August 2019, the worker jointly submitted a claim for an automatic upgrade to a 1 FTE role under the Cush Process claiming that the employer was in breach of the Cush Report. The claim submitted to the Cush Process was a joint claim made by both the worker and ML. The Independent Adjudicator accepted that the claim was joint and treated it as such. The subsequent Cush adjudication process, which issued a joint decision, found that the University was not in breach of the Cush Report.
· On 4 January 2021, the University received notice from the WRC of a complaint under section 13 of the IR Acts from the worker. This was the first official notice that the employer received regarding the 2021 WRC Claim and it lodged an objection to this being investigated on the same day.
The employer submits that the worker wants to be paid as a full-time Lecturer. He claims he is currently undertaking a full-time role and has been for some time. The employer contends that this is essentially the same argument that he advanced in the 2017 WRC Claim. The employer maintains that the worker’s workload and duties are more than adequately comprehended by the .75 Lecturer role. More generally, the employer maintains that it is not appropriate for the worker to seek specific contractual terms pursuant to an IR Acts reference and this is part of a wider dispute with IFUT. The employer submits that if the worker believes he is being paid less than he should be, he has other potential remedies. The employer states that it is currently in dispute with the worker’s trade union (IFUT) regarding the manner in which cases are being referred to the WRC. It states that IFUT has as a matter of record, submitted a number of legal claims against the University under the IR Acts. The University strenuously objects to legal claims being made under the IR Acts and has, again as a matter of record, objected to legal claims being investigated as trade disputes.
The employer has two preliminary objections to the WRC hearing this matter.
First Preliminary Objection
The employer states that it objected, within time, to this matter been considered by an Adjudication Officer under section 13 of the IR Act. It states that the objection was raised immediately upon the respondent being formally made aware by the WRC that a complaint had been filed by the worker. The employer states that as referred to above, the worker’s colleague ML raised the exact same complaint in January also, which the respondent received and objected to, following this objection, the WRC confirmed it will not proceed. The employer asserts that something has gone wrong in relation to the notification and administration of this matter which is not the fault of the employer. The employer states that it has objected to this process, as it is entitled to, and this claim should not be heard.
Second Preliminary Objection
The employer states that this claim - the 2021 WRC Claim – is identical to the 2017 WRC Claim. It states that the 2017 WRC Claim was withdrawn by the worker’s representative after a brief initial hearing before an Adjudication Officer on 27 February 2018, on the basis that the parties would engage with the Cush Process. The employer states that in an e-mail to the worker’s representative in IFUT of 15 June 2018, it stated the following; “The University does not accept that your members should be entitled to bring parallel claims in separate forums. It goes against efficiency, good practice and indeed fairness to the University for your members to seek to have the matter adjudicated under the Cush Process but (presumably in case the decision there is not favourable to them) at the same time to attempt to retain the right to have the matter subsequently processed through the WRC. In short and with respect, the University’s position is that your members need to select which forum they wish to use to adjudicate on the contractual/IR matter. If they wish to proceed to the Cush system, they will have to withdraw their WRC claim.”
The employer states that in response to the above, the worker’s representative stated as follows on 13 July 2018; “In response to the below, we are agreeable to withdrawing all matters from the WRC if (the University) my emphasis are agreeable to let the status quo with regard to the .75 contracts remain in place pending a decision by the Cush Adjudicator on the matter. We will be claiming to the Adjudicator that both members should be placed on 100% contracts since the 1 June 2017.” The employer states that in an earlier e-mail exchange between the same parties, the employer’s representative stated to IFUT that “It is noted that the Payment of Wages Act claim, as a statutory claim can only be dealt with before the WRC. If your members wish to maintain that claim then the University has no objection even if the contractual/IR matter is processed solely through the Cush Process.” The employer submits that the worker/IFUT chose to withdraw that aspect from the WRC and now they are trying to use the IR Acts to address a contractual issue.
The employer outlines that the 2017 WRC Claim was ultimately withdrawn by the worker’s representative on 28 August 2018, where he stated as follows: ”The above case numbers relate to cases scheduled for hearing on 3 October at 11.30 am in the WRC. I am pleased to advise the service that agreement has been reached to allow for these matters in dispute to be ruled upon by a separate process and for the “status quo” to prevail until that time. On behalf of the Irish Federation of University Teachers and our members involved, I wish to thank the Adjudication Officer for the great efforts made to get this issue to agreement, we are now withdrawing the dispute from the WRC.” The employer asserts that the letter from the WRC confirming withdrawal of the 2017 claim state that the WRC has “no further jurisdiction” regarding the matter.
The employer states that the worker’s engagement with the Cush Process has now been completed and the worker was not awarded a full-time 1 FTE contract by the Cush Adjudicator. It states that regardless of the outcome of the Cush Process, the 2017 WRC Claim was withdrawn. The employer states that it was not adjourned or postponed with liberty to re-enter. It is the employer’s view that the worker is effectively trying to reinstate the 2017 WRC claim, having been unsuccessful in the Cush Process. The employer states that with the utmost of respect to the Cush Process Adjudicator, they have no role in commenting on this within WRC claim and their comments in that regard are Obiter.
The employer states that the worker has worked as a part-time Lecturer at the University from various dates going back to 2003. It states that on an exceptional basis and at the end of an elongated internal review of the worker’s role, the worker was offered a combined 75% Contract of Indefinite Duration on 13 December 2017 (“the CID offer”). The CID offer was a composite offer on an annualised basis to encompass all work performed by the worker throughout the year. The employer states that it was also a generous offer which was intended to document future arrangements on a full and final basis. The employer asserts that surprisingly, this CID was not signed by the worker but the employer has paid him since this date and continues to pay on that basis. The employer maintains that it is not appropriate for the worker to seek specific contractual terms from the WRC in the within claim pursuant to an Industrial Relations Act reference.
Findings and Conclusions:
I have considered the preliminary issue raised by the employer that the WRC has no jurisdiction to hear the within dispute on the basis that the employer objected, within time, to this matter been considered under section 13 of the Industrial Relations Act. Having examined all of the records on file, no such notification was received by the WRC and accordingly on that basis I proceeded to hear the substantive matter.
I have considered the substantive issue wherein the worker claims that he should be given a 100% Lecturing contract based on having a full workload. I have also considered the information given by the employer. The employer maintains that the WRC should not be recommending specific contractual terms to employees in a trade dispute under an Industrial Relations Act referral, particularly in circumstances where the employer is stating that it does not have a full-time / FTE work requirement for the worker. Having carefully examined all the information provided in relation to the within claim, I consider that, in the particular circumstances of this matter, it is not appropriate for me to recommend specific contractual terms in relation to employees pursuant to an Industrial Relations Act referral.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that it is not appropriate for me to make a recommendation on specific contractual terms in relation to employees pursuant to an Industrial Relations Act referral.
Dated: 13th September 2021
Workplace Relations Commission Adjudication Officer: Valerie Murtagh
Industrial Relations Act