Complainant

Respondent

Parties

Janyce  Condon

Maynooth University National University Of Ireland Maynooth

Representatives

Robert McNamara Irish Federation of University Teachers (IFUT)

 Dermot Maguire, Employee Relations Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 18A of the Organisation of Working Time Act, 1997

CA-00057576-001

07/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00058911-001

20/09/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and three witnesses from the respondent gave their evidence under affirmation. Cross examination was facilitated.

At the completion of the hearing, I took the time to review all the oral evidence together with the written submissions made by the parties. The respective positions of the parties are noted, and a broad outline of the evidence and cross examination is provided.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

The complainant submitted that she is a Performance Tutor in the Department of Music. Her duties include teaching instruments and/or voice, including researching, preparing lessons and conducting administration pertaining to the one-to-one teaching of a varying number of students. She has worked with the respondent since 2013. At the time of the hearing she taught what constitutes 70/80% of the module on the degree course. The complainant must have a specialist academic underpinning, professionalism and expertise to deliver this. It requires constant upkeep and research.

The complainant submitted that her current remuneration is €831 per student per academic year, including 20 one-to-one tutorials per student, which are 45 minutes long. The tutorials take place over 20 weeks in the Academic Year, with 9 weeks falling in Semester 1 and 11 weeks in Semester 2. All required activities are included in the overall remuneration, including, inter-alia, contact hours (45-minute tutorial), preparation, scheduling, feedback, administration and professional development.  She was assigned 24 students to tutor in the last academic year.

The complainant submitted that her terms of employment do not reflect the number of hours she works per week. In fact, despite being employed by the respondent since 2013, they had failed or neglected to issue her with a contract of employment.  In an attempt to remedy this she referred a claim to the WRC under the Terms of Employment Information Act, 1994, in October 2020.  Specifically, the claim highlighted the absence of any minimum guaranteed hours and notably emphasised the complete lack of a formal contract.

Subsequent to the WRC decision, the respondent issued the complainant with a document which it described as Confirmation of Terms and Conditions of Engagement, Department of Music.

The complainant submitted that what transpired was that the respondent presented the Claimant with what was essentially a zero-hours contract, applicable only during term time. Accordingly, the complainant rejected that the terms of the contract adequately reflected the terms of her employment. The matter has remained disputed.

In addition to the foregoing, the complainant then claimed a Contract of Indefinite Duration (CID). In December 2021, the respondent finally agreed to issue a CID to her.

The complainant submitted that this proposed an arrangement which was a de facto zero-hours contract. The only aspect of this contract resembling a CID was the omission of an expiry date. This modification, however, merely served to perpetuate the precarious and unacceptable terms of the contract indefinitely.

The complainant submitted that the respondent’s actions in this regard have not only failed to rectify the instability of her employment situation but have, in fact, entrenched it further by making these conditions perpetual.

CA-00057576-001 Banded Hours

The complainant submitted that she applied in writing on 6 June 2023, to be placed in a band of hours. She submitted that her employer has failed to place her in a band of weekly working hours, unreasonably refusing the request.  The respondent asserted that her contract of indefinite duration and apparent lack of a zero-hours contract precluded her from utilising the legislative provisions in Section 18A of the Organisation of Working Time Act and on that basis concluded that she was not entitled to be placed onto a Band of Working Hours.

It is the complainant’s position that the employer has contravened the provisions of Section 18A of the Organisation of Working Time Act as amended.  She is seeking a direction from the WRC that the respondent complies with the legislation and place her on a band of hours.

CA-00058911-001 Terms of Employment

The complainant submitted that on 7 July 2023 she sought more predictable and secure working conditions.   She submitted that her employer has not provided her with a reasoned reply to that request within one month stipulated in the legislation or at all.  She is seeking compensation for the contravention of the Act.

Summary of Relevant Oral Evidence:

The complainant gave an outline of the nature of her duties and her role.  She provided information regarding the number of students she tutored noting that she her duties took “easily 30 hours per week”.  Under cross examination she confirmed that the University was able to give her more students in the year prior to taking the complaint due to a surge in numbers.

The respondent submitted that the complainant claims that they are not employed under predictable and secure working conditions. The respondent rejects this claim as the complainant is generally allocated a similar number of students each year.  Documentation submitted shows how the complainant’s expectation was to have between eleven and thirteen students in 2022/23, as this was the number of students allocated to them in previous years.  At the start of each academic year, the variables are the number of students seeking tuition and the number of Performance Tutors seeking students.

The respondent submitted that the Department of Music saw a substantial increase in overall enrolment for their BA and that triggered an unexpectedly large increase in Voice Students within this cohort. This meant an increase in the allocation of students for Voice Performance Tutors. The complainant had sought more students which the respondent could accede to on that occasion, as the other Performance Tutors did not want any more students that year. The increase in the number of students allocated to the complainant was due to exceptional circumstances that were unforeseeable and beyond the employer’s control.

The respondent submitted that the number of students, while a decrease on 22/23, is still larger than the average number of students allocated to the complainant in the previous two years. It would be unusual for students allocated to the complainant to fall below the average numbers. However, the average number of students allocated to the complainant in the last year were affected by a temporary situation that no longer exists.

During the academic year, if a student withdraws after the first five weeks of Semester one or after the first two weeks of Semester two, the Performance Tutor will be paid the fixed sum for that student, that would have fallen due until the end of the semester in which they withdrew. This illustrates how the Department of Music tries to ensure that the Performance Tutor’s payments do not fall below the student numbers provided at the beginning of the academic year.

CA-00057576-001 Banded Hours

The respondent submitted that on 6 June 2023, the complainant wrote to the Respondent seeking to be placed on a band of weekly hours as per section 18A of the Organisation of Working Time Act 1997. The respondent responded to the complainant’s request on 27 June 2023 and confirmed the following: that they reviewed her contract of indefinite duration, and are clearly of the belief that the facts of her case do not support the claim, including the fact that she is not on zero hours and that she is not required, nor has been required, to be available for work outside of the agreed number of students. Her agreement with the University is that payment is based on a per student basis.

The respondent submitted that as it would be unusual for the complainant’s student allocation to fall below the average number of students allocated to the complainant (between eleven and thirteen students), she is not considered to be on a zero-hours contract.

CA-00058911-001 Terms of Employment

The respondent submitted that on 7 July 2023, the complainant wrote to the respondent requesting a statement of employment.  Separate correspondence was also received on the same date seeking a request for a more predictable form of employment in accordance with the Terms of Employment ACT 1994 (as Amended).

The respondent responded to the complainant on 24 July 2023 with a copy of the complainant’s contract and confirmed that the programme of work available is dependent on the intake of students for the academic year. The programme of work is available every October and will form the basis of a predictable work schedule over the next two semesters. 

The respondent submitted that the complainant is responsible for determining their own hours of work, as per clause 6.11 in her contract. The teaching week is 9am to 6pm Monday to Friday or by exception and agreement with students, outside of these hours. The complainant has chosen to work two days for academic year 2023/24. The schedule, as decided by the complainant and agreed with the students, was submitted to the Department of Music on 23 October 2023.

Summary of Relevant Oral Evidence:

The Head of the Music Department gave evidence that Performance Tutors are not involved in assessments but are required on a weekly basis to give feedback orally.   They are required to prepare the scheduled but are not involved in marking assignments or preparation for the final exams.  He stated that they are always paid on a per student rate and that those numbers are dependent on admissions.  He confirmed that she is required for 9 weeks in the first semester and 11 weeks in the second semester.

Under cross examination it was put to him that no minimum number of students is specified and that there is no commitment in the contract to any hours.  He also provided his thoughts on the amount of preparation that may be involved

CA-00057576-001 Banded Hours

Section 18A (1) to (5) of the Organisation of Working Time Act states as follows:

(1) Where an employee’s contract of employment or statement of terms of employment does not reflect the number of hours worked per week by an employee over a reference period, the employee shall be entitled to be placed in a band of weekly working hours specified in the Table to this section.

(2) In accordance with subsection (1), where an employee believes that he or she is entitled to be placed in a band of weekly working hours, he or she shall inform the employer and request, in writing, to be so placed.

(3) The employee shall be placed by the employer in a band of weekly working hours from a date that is not greater than 4 weeks from the date the employee made the request under subsection (2).

(4) The band of weekly working hours on which the employee is entitled to be placed shall be determined by the employer on the basis of the average number of hours worked by that employee per week during the reference period.

(5) An employer may refuse to place an employee on the band requested—

(a) where there is no evidence to support the claim in relation to the hours worked in the reference period,

(b) where there has been significant adverse changes to the business, profession or occupation carried on by the employer during or after the reference period,

(c) in circumstances to which section 5 applies, or

(d) where the average of the hours worked by the employee during the reference period were affected by a temporary situation that no longer exists.

The complainant submitted that her contract is silent on the hours of work and accordingly she falls to be considered under the legislation in accordance with 18A(1) of the Act.  The respondent for their part noted that the complainant is not on a zero-hours contract and accordingly does not fall within the legislation.

Having regard to the legislation section 18A(1) I note that it does not make specific reference to a zero-hours contract rather it refers to “contract of employment or statement of terms of employment does not reflect the number of hours worked per week by an employee over a reference period”. 

In the case of O’Leary v Aer Lingus Ireland Ltd. DWT207, the Labour Court noted the following:

Section 18A sets out that an employee is entitled to request an employer to place her in a band of weekly working hours which reflects the average hours she works per week. This entitlement is given to an employee where she considers that her contract of employment or statement of terms of employment does not reflect the number of hours she works per week. Where such a request is made, an employer is required to determine the appropriate band to place an employee by calculating the average hours worked by the employee in the course of a 12 month ‘reference’ period. The plain purpose of the provision is to ensure the number of hours specified in the contract of employment reflects an employee’s actual working week.

Having regard to the foregoing Section 18A(1) and to the conclusions of the Labour Court above, I find that Section 18A(1) applies to the complainant, that complaint is well founded, and I require the respondent to comply with Section 18A and place the complainant on the appropriate band of hours. 

The following extract from the O’Leary v Aer Lingus case considers the manner in which a band of hours may be implemented and for ease of reference is reproduced below:

If the calculation mechanism contended for by the Respondent is to be accepted, then, as a matter of mathematical certainty, this objective will automatically be defeated. This is so because the mathematical means to average hours worked across a 12-month period contended for by the employer is to total all hours worked in the period using a divisor 52. Thus, in a year where the employee has spent one week or more on annual leave as distinct from being at work, a divisor of 52 will lower the average. This methodology would guarantee a resulting average which does not reflect the average number of ‘hours worked’ per week by the Complainant in any week where she engages in ‘working time’ as that term is to be interpreted according to Section 20 of the Act.

Section 18A of the Act does not provide a definition of the term ‘hours worked’. Section 2 of the Act does set out that the term ‘work’ should be construed in accordance with the interpretation of the term ‘working time’ set out in that section.

The Court is satisfied that the treatment of annual leave required by Section 19 relates to the treatment of such leave for the purposes of Subsection 1 of that section only.  The Court also notes that section 2 of the Act requires that ‘In the Act’, the term ‘annual leave’ shall be construed in accordance with Section 19. The term ‘annual leave’ is not used in Section 18A of the Act.

The Court is therefore satisfied that no provision of the Act provides a means to interpret Section 18A(4) such that the meaning of the requirement resting on the employer to determine ‘the average number of hours worked by that employee per week during the reference period’ can be said to be clearly and unambiguously set out. In particular, the Act does not make clear how time spent on annual leave is to be treated in the calculation of the average.  The Court cannot simply import the treatment required of annual leave in Section 19 of the Act into Section 18A and neither can it apply the meaning of the term ‘annual leave’ set out in Section 2 to the provisions of Section 18A which does not use that term at all. Similarly, references in the Act to the treatment of annual leave do not resolve the matter.

In circumstances where, in the view of the Court, the meaning of Section 18A(4) of the Act appears to be ambiguous and where a literal interpretation of the term ‘the average number of hours worked by that employee per week during the reference period’ as used in that subsection would, in the view of the Court as has been set out above, fail to reflect the intention of the Oireachtas, it is necessary to interpret the legislation in the manner provided for at section 5 of the Interpretation Act, 2005 (the Act of 2005) which provides as follows:

5.(1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)—

(a) that is obscure or ambiguous, or

(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of—

(i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2 (1) relates, the Oireachtas, or

(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,

the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.

The Court therefore concludes that the only reasonable means to ensure that the plain intention of the Oireachtas can be achieved is by interpreting Section 18A(4) so as to mean that the divisor to be used to calculate the average number of hours worked by an employee per week during the reference period should be determined by excluding the number of weeks spent on annual leave in the period. Thus, in a reference period of 52 weeks where an employee has spent, for example, four weeks on annual leave, the divisor for the purposes of section 18A(4) of the Act should be 52 minus 4 which is 48. In this manner, the average number of hours worked by that employee per week during the reference period can be determined by calculating the average hours worked per week in those weeks where the employee is engaged in work as defined in Section 2 of the Act and allowing for the fact that time spent on annual leave during the reference period is not treated as working time for the purposes of the Act at Section 18A.

Determination

The Court determines that the within complaint is well founded and requires the Respondent to comply with Section 18A and place the Complainant on the appropriate band of hours.

CA-00058911-001 Terms of Employment

Section 6F of the Terms of Employment (Information) Act states as follows:

Transition to another form of employment

6F.— (1) Subject to subsection (2), an employee who has been in the continuous service of an employer for not less than 6 months and who has completed his or her probationary period, if any, may request a form of employment with more predictable and secure working conditions where available and receive a reasoned written reply from his or her employer.

(2) An employee may, once in any 12-month period, request a form of employment in accordance with subsection (1).

(3) An employer shall provide the reasoned written reply referred to in subsection (1) to an employee within one month of the request by the employee.

(4) An employer may provide an oral reply where a subsequent similar request is submitted by the same worker where the situation of the worker remains unchanged.

(5) This section shall not apply to seafarers or sea fishermen

Having regard to the Contract of Indefinite Duration concluded by the employer, effective from 15 December 2021, and referenced in the Confirmation of Terms and Conditions of Employment document, I am satisfied that the complainant falls within the terms of Section 6F as cited above.

The complainant requested a form of employment with more predictable and secure working conditions on 7 July 2023.  The complainant suggested that her employer has not provided her with a reasoned reply to that request within one month stipulated in the legislation or at all.  

Although I have been provided with a response to that request letter, it does not deal with the ‘more predictable and secure working conditions’ aspect of the request.  I have not been provided with any correspondence that proports to be a reasoned written reply to this request as required by section 6F(3). Accordingly, I find that the complaint is well founded, require the employer to give the employee a reasoned reply to the request, and award the complainant compensation in the amount of €2493 (equating to three weeks salary) which I consider to be just and equitable in all the circumstances of this case.

CA-00057576-001 Banded Hours

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that complaint is well founded, and I require the respondent to comply with Section 18A and place the complainant on the appropriate band of hours. 

CA-00058911-001 Terms of Employment

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that complaint is well founded, and I require the respondent to give the employee a reasoned reply to the request regarding more predictable and secure working conditions and order the employer to pay the complainant compensation in the amount of €2493 (equating to three weeks remuneration) which I consider to be just and equitable in all the circumstances of this case.

Banded Hours – well founded – compliance required – request for more predictable and secure working conditions – well founded – directed reasoned reply – award of compensation