FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE DUBLIN NORTH EAST - AND - A WORKER (REPRESENTED BY PNA) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Recommendation r-096462-ir-10.
BACKGROUND:
2. This dispute concerns the Worker's claim that she be allowed to retain her pension rights under Section 65 of the Mental Treatment Act, 1945. This dispute was referred to a Rights Commissioner for investigation and recommendation. On the 9th January, 2012 the Rights Commissioner issued the following Recommendation:-
- "I uphold the claimant's complaint and recommend her entitlement to mental health pension rights as per the 1945 Mental Treatment Act."
On the 26th June, 2012 the Employer 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 28th August, 2012.
UNION'S ARGUMENTS:
3. 1. Psychiatric Nurses employed prior to April 2004 enjoy accelerated pension entitlements as provided for in the Mental Treatment Act, 1945.
2. The Worker maintained these accelerated pension entitlements for the first seven years in her current job.
3.The Employer is now seeking substantially to reduce the Worker's terms and conditions of employment.
EMPLOYER'S ARGUMENTS:
4. 1.Accelerated pension entitlements per Section 65 of the Mental Treatment Act, 1945 are for those in care or charge of patients.
2.The Worker ceased to be in care or charge of patients when she took up her new role in 2001.
3.The Employer is not permitted to extend Section 65 accelerated pension entitlements to staff who do not satisfy the legislative criteria.
DECISION:
On the first occasion on which the matter was before it the Court adjourned the hearing of the appeal so as to facilitate the parties in having further discussions on the issue in dispute. It is noted that the HSE has since made an offer to extend the Claimant's period of secondment up to age 55 thereby enabling her to avail of the early retirement option under the pension arrangements applicable to her while serving in her former role.Under the proposal, if the Claimant did not retire at that stage she would be required to sign a new contract and would thereafter accrue pension entitlements pursuant to the general HSE scheme but without loss of accrued entitlements under ~ Section 65 of the Mental Treatment Act 1945 scheme.
This proposal was considered unacceptable to the Claimant;mainly because she could not then retire before age 60 if she elected to work beyond age 55.
The Court believes that the HSE has made a reasonable and genuine attempt to
meet the Claimant's concerns. However,having regard to all the circumstances of this case,on an exceptional basis and on the strict understanding that it will not be relied upon or quoted as having any precedent value in any other case, the Court has come to the view that the HSE should modify its proposal so as to extend the secondment of the Claimant up to age 57.Allother aspects of the HSE offer should apply to the offer as modified.
The Rights Commissioner's recommendation is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
6th November, 2012______________________
JMcCChairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.