FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : MILLWARD BROWN IRELAND LIMITED (REPRESENTED BY ROSEMARY MALLON B.L. INSTRUCTED BY WHITNEY MOORE SOLICITORS) - AND - A WORKER (REPRESENTED BY DILLON SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Recommendation R-096619-IR-10/DI.
BACKGROUND:
2. The case before the Court concerns a claim by the Worker in relation to pension entitlements. The Worker commenced employment with the Company in 1979 and shortly afterwards became a full-time permanent employee. In 1983 she became a member of the Irish Marketing Surveys Group Pension Scheme, locally known as Pension Scheme "A". The terms of the Scheme required an annual contribution of 3% of pensionable salary and entitled the Worker to a maximum annual pension of two-thirds of her final salary at the retirement age of sixty.
In 1994 the Worker resigned from the Company to pursue studies. In 1995 the Worker returned to the Company in a temporary capacity up until 1996 when the Worker again became a full-time permanent employee. Two years later in 1998 the Company offered the Worker the opportunity to join the Pension Scheme known as the "B" Scheme which required a contribution rate of 5% and provided for a retirement age of sixty-five. The Worker contends that at this point in time she was under the impression that she was a continued member of the "A" Scheme and sought re-instatement into the "A" Scheme. The Worker was advised that this Scheme was closed to new entrants and that the alternative option was to join the "B" Scheme. The Company maintains that re-entry to the "A" Scheme not only would have been disadvantageous to the Worker, it would have been at a prohibitive cost to the Company hence there was no option for the Worker to return to the "A" Scheme. The Company finally offered to recognise the Worker's pensionable service from 1996 as part of the "B" Scheme and also offered a lump sum payment into an AVC fund on the Worker's behalf. The Worker declined this offer and agreement could not be reached between the parties.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 16th November 2011 the Rights Commissioner issued his Recommendation as follows:
"While it is very clear that there was confusion regarding the Claimant's pension status when she returned to the Respondent's employment in 1995 and when she was subsequently made permanent in 1996, I am satisfied that she was not offered membership of the A Scheme at that time. Having fully considered the submissions made by the parties, I find that the offer made by the Respondent in 2008 whereby it was agreeable to recognising the Claimant's pensionable service under the B Scheme from 1st April 1996 and paying the sum of €7,500 into an AVC on her behalf, was a reasonable compromise solution to this dispute. I recommend that the Claimant accept this offer in full and final settlement of this matter".
On the 21st December, 2011 the Worker appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 30th March, 2012.
WORKER'S ARGUMENTS:
3. 1. The Worker returned to the Company on the same terms and conditions of employment that she had enjoyed previously.
2. At the time of her return to work the Worker was of the view that she had been re-instated into the Company's "A" Scheme.
3. The Worker contends that she has been treated in an inequitable manner and is seeking re-entry into the "A" Scheme.
EMPLOYER'S ARGUMENTS:
4. 1. The Company is of the view that the Worker was fully aware that upon her return to work she was no longer a contributing member of Pension Scheme "A".
2. The Worker has no contractual right to return to the "A" Scheme.
3. The Company is not in a position to allow the Worker to return to the "A" Scheme.
DECISION:
- In its approach to this case the Court has sought to find a fair and reasonable basis upon which the Claimant’s grievances can be addressed having regard to all the surrounding circumstances.
It seems clear that on her re-appointment in 1996 the Claimant believed that her terms and conditions of employment would be the same as during her prior period of employment. The Company has itself acknowledged that she should have been expressly advised of the material changes in her pension entitlement. However, given the passage of time and the costs involved, there can be no reality, from a practical industrial relations perspective, in suggesting that she be restored to membership of the A Scheme.
The Court does, however, believe that some modification of the Rights Commissioner’s Recommendation is warranted. The Court notes that the Rights Commissioner’s Recommendation provides for the payment by the Company of a lump-sum in the amount of €7,500 into an AVC fund on the Claimant’s behalf. In all the circumstances of the case the Court believes that this amount should be increased to one of €17,500 to be similarly invested in an AVC fund on the Claimant’s behalf. This payment should be accepted by the Claimant in full and final settlement of her grievances which gave rise to this referral.
The other elements of the Rights Commissioner’s Recommendation should remain undisturbed.
The Rights Commissioner’s Recommendation is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
13th April 2012______________________
SCChairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.