Complainant

Respondent

Parties

Ian  Thornton

Atlantic Technological University Sligo

Representatives

Self-Represented

Mr. Declan Thomas, IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00066515-001

07/10/2024

The Complainant commenced employment with the Respondent on 22nd January 2024. The Complainant was engaged as a “Assistant Lecturer” and received an hourly rate of pay of €68.37.

On 7th October 2024, the Complainant referred the present complaint to the Commission. Herein, he alleged that the Respondent had made an illegal deduction in failing to discharge wages that were properly payment to him. By response, the Respondent stated that the Complainant was remunerated in accordance with the relevant national agreements and his own personal contract of employment.

A hearing in relation to this matter was convened for, and finalised on, 29th November 2024. This hearing was held in person at the Commission’s Sligo offices.

Both parties issued extensive submissions in advance of the hearing, said submissions were expanded upon and contested in the course of the hearing. Given the nature of the complaint, no witness evidence was called by either side to the dispute.

No issues as to my jurisdiction to hear the dispute were raised at any point of the proceedings.

By submission, the Complainant stated that he was engaged as an “Assistant Lecturer”. This position was remunerated by way of a contractual hourly rate. As part of the Complainant’s duties, he engaged in dissertation supervision for final year students.  After the dissertations had been submitted, the Complainant was asked to assist in the marking and reading of dissertations, poster presentation and viva attendance.

In the normal course, the Complainant was expected to issue a timesheet for the hours he had completed to the relevant HR department. When the Complainant issued his timesheet for the marking and reading of dissertations, the Respondent stated that the Complainant was not entitled to the contractually agreed rate of pay for the work completed. In particular, they stated that the Complainant was only entitled to a small “stipend” in respect of the works completed. In this regard, the Complainant submitted that his contract of employment was a fixed term contract that had expired on the date the services were rendered. In such circumstances, he submitted that the terms of the contract remained valid and that he was entitled to the full rate of pay for the hours of work as set out therein. He further submitted that if the stipend was deemed to be the rate of pay, he would have effectively earned less that minimum wage at the time.

In conclusion, the Complainant submitted that the Respondent had refused to pay him the correct contractual rate of pay for the work completed by him. In such circumstances, he submitted that the Respondent had made an illegal deduction of €1,640.88 from his wages, and he submitted that the complaint should be deemed to be well-founded.

By response, the Respondent denied that they underpaid the Complainant, and stated that the correct rate of pay was applied throughout his contract.

By submission, the Respondent stated that Complainant was engaged as an “assistant lecturer”. Such services are remunerated by way of an agreed “HPAL” hourly rate. This agreement provides for a rate of €63.31 per hour for such services. Regarding the Complainant in particular, he was allocated 4 students to supervise in the 2023-2024 academic year. Thid equates to two hours per week during the thirteen week semester. In these circumstances, the Complainant worked for 52 hours in total throughout the academic year, and was paid €3,292.12 in respect of the same.

In addition to the foregoing, following the conclusion of the academic year, the Complainant was engaged for the purposes of reading and correcting of dissertations.  This activity is governed by Section 6.3 of the Complainant’s employment contract. This section states that the nationally agreed rate for dissertation correction is €15.25 per dissertation corrected. When the Complainant completed these duties, he sought payment for three hours per dissertation completed, as opposed to the nationally agreed rate for such services. In this respect, the Complainant corrected 8 dissertations, which accrued a payment of €122 overall.

By submission the Respondent stated that the clear contractual position was that the Complainant was entitled to payment of €15.25 per dissertation corrected. At no time was the Complainant led to believe that he would be paid at a rate of €63.31 per hour for the provision these services, indeed the Respondent submitted that the opposite was the case, with the Complainant being informed on a number of occasions, including the previous year, of the relevant rate of pay for the correction of dissertations.  

Regarding the present case, the Complainant has submitted that he is entitled to the hourly rate of pay set out in his contract for services rendered to the Respondent. By response, the Respondent has submitted that payment for the particular services in question are governed by a separate section of the contract, and that the Complainant is only entitled to a, much smaller, “stipend” in respect of the same.

Section 1 of the Payment of Wages Act 1991, defines “wages” as “any sums payable to the employee by the employer in connection with his employment, including…any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise”.

In the matter of Marek Balans v Tesco Ireland Ltd [2019 No. 83 MCA], McGrath J stated that when considering complaints under the present Act,

“Central to the Court’s analysis must be the concepts of wages properly payable and the circumstances in which there is a deficiency in respect of those such payments”.

Regarding the present case, the submission of the Complainant is that he did not receive wages that were properly payable to him and that he suffered a deficiency in respect of his payment. In these circumstances he submitted that he suffered an illegal deduction from his wages and submitted that his complaint should be deemed to be well-founded.

In this regard, both parties sought to rely of the terms of the Complainant’s contract of employment to advance their respective arguments. Clause 6 of this contract is entitled “Remuneration” and sets out the basis on which the Complainant’s wages would be paid.

In this regard clause 6.1 states that,

“Remuneration will be paid at the rate as outlined in the attached letter of offer.”

The relevant letter of offer then provides for a “current hourly rate of pay (of) €68.37”. This correspondence goes on to provide that,

“The duties of the post are outlined in the contract of employment. This contract clearly specifies the duties required and accordingly you should not undertake additional duties without prior written agreement”.

Clause 4 of the contract of employment is entitled “duties”. Part A of that clause states that the following will be considered a duty for the purposes of the contract,

“…teaching the subjects specified and in accordance with the timetable….In addition, it will be necessary to spend whatever time is required in preparation and correction in order that teaching may be carried out effectively”.

Clause 5.1 states that,

“The appointee will be required to teach such hours as agreed by the relevant Head of Department…These hours may be temporarily increased by mutual agreement. In the event of such agreement this contract will apply to these hours.

Point 6.3, under the heading “Remuneration” provides that,

“The appointee will also be paid at the rate approved by the Minister for Education & Skills in respect of marking examination papers/projects”.

Circular 30/2013 sets out the relevant pay scales reference above. In a table appended to the circular, under the heading “examination fees payable to certain lecturing staff…” the rate of €15.25 per student is set out under the sub-heading “Post Graduate Dissertations”.

While it is noted that the fixed term of the contract of employment had expired, it is apparent that both parties sought to extend the same beyond this term, and that the provisions listed above were applicable when the Complainant provided the services in question.

The position of the Complainant is that the Respondent, in requesting that dissertations be corrected by him, extended the agreed hours in accordance with clause 5 and, as a consequence of the same, the agreed contractual hourly rate should apply.   The Complainant further submitted that the wording of Section 6.3, in particular the inclusion of the word “also”, outlines that the Complainant would be paid the stipend as an additional payment in excess of the standard hourly rate.

Regarding the contractual documents, being the letter of offer and the contract itself, it is clear that the rate of pay outlined relates to work undertaken under the “duties” section of the contract. In this respect, clause 4A of the same relates solely to duties related to teaching, and those additional duties that would assist in the delivery of teaching. Clearly the correction of dissertations falls outside the scope of such duties and cannot be said to be included as an express duty under this provision.  

Notwithstanding the same, it is noted that section 4B states that the “evaluation of examinations” falls within the Complainant’s normal duties. In circumstances whereby the document appended to Circular 30/2013 provides that the correction of post graduate dissertations falls under “examination fees payable to certain lecturing staff…” it can be inferred that the Respondent views the correction of dissertations as falling under the “evaluation of examinations” heading and, as such, may be deemed to be within the Complainant’s normal duties that might attract the relevant hourly rate.

Regarding clause 6, part 1 of the same provides that remuneration is governed by the letter of offer. Part three then goes on to state that the appointee will “also” be paid at the rate approved by the minster in respect of marking examination papers / projects. At the hearing it became apparent that the work “also” in this context could have two different meanings. The Complainant submitted that “also” could be interpreted to mean “in addition to”, while the Respondent submitted that the word could be interpreted to mean “in the alternative to”.  While both these interpretations can be inferred from the contract itself, it is noted that the Respondent is the body that drafted this document, and any ambiguity in relation to the same must be held against that body. 

In this regard, it can be seen that the Complainant’s the letter of offer states that the Complainant will be paid the sum of €68.37 in respect of each hour of work that falls under agreed his contractual duties, that relevant circular views the correction of dissertations as falling under the “examinations” heading, that the “evaluation of examinations” is listed as one of the Complainant’s normal duties, that the Complainant was asked by the Respondent to provide these services and that the relevant remuneration section of the contract provides that the payment of the stipend is in addition to the relevant hourly rate.

Having regard to the accumulation of the foregoing points, I find that the hourly rate applied to the Complainant regarding the corrections of dissertations. In such circumstances, the hourly rate in question may be deemed to be “wages” that are properly payable for the purposes of the impleaded Act. The Respondent’s non-payment of these wages may be deemed to be an illegal deduction for the purposes of the Act and, consequently, the complaint is deemed to be well-founded. 

I find that the complaint is well-founded.

Regarding redress, Section 6(2) of the Act (as amended) empowers me to award such redress as deemed reasonable in the circumstances, so long as the same does not exceed the total amount of wages owed. In this regard, I award the Complainant the sum of €1,640.88.  This payment should be subject to all normal deductions as income.

Stipend, Contract, Circular, Dissertations