FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DIAGEO - AND - A WORKER (REPRESENTED BY AUGUSTUS CULLEN LAW) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Recommendation r-099978-ir-10/DI.
BACKGROUND:
2. This dispute concerns the interpretation of the Worker's agreed severance arrangements. This dispute was referred to a Rights Commissioner for investigation and recommendation. On the 28th July, 2011 the Rights Commissioner issued the following Recommendation:-
- "I find that the [Company] is entitled to implement the voluntary redundancy on the terms under which it was offered ... I find against the [Worker's] complaint."
On the 31st August, 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 6th December, 2011 and the 5th December, 2013.
3. 1. The Worker's understanding has always been that his normal retirement age is 62.
2.The Worker's contract of employment and correspondence from the Company clearly states that his normal retirement age is 62
3.The Worker has never consented to his normal retirement age being changed to 65.
COMPANY'S ARGUMENTS:
4. 1.The Worker's pension on voluntary retirement has been properly calculated.
2.The Worker's pension was calculated in the most favourable manner consistent with the rules of the scheme.
3.The Worker freely consented to these arrangements when he opted for voluntary redundancy.
DECISION:
There is no doubt that the Claimant was aware that he was a member of the Company’s contributory pension scheme. As the Rights Commissioner observed in his Recommendation, the Claimant was informed to that effect by letter dated 16thJuly 1993 and thereafter he paid contributions to the scheme. The retirement age is determined by the rules of the pension scheme and was set, in the case of the contributory scheme, at age 65. The Court has no doubt that this retirement age was agreed with the relevant trade unions, including the Claimant’s trade union, and formed part of the collective agreement to which the Claimant was a party.
Those who remained in the non-contributory scheme had an earlier retirement age of 62. While the Claimant had deferred service under that scheme it only entitled him to draw the deferred element of his pension at the earlier retirement age. The Court shares the Rights Commissioner’s scepticism that the Claimant was unaware of the fact that he had become a member of a pension scheme which provided for a pension at age 65 rather than at age 62.
There is no doubt that the Company was remiss in stating to the Claimant that his retirement age was 62. Nonetheless, the statements made by the Company to that effect were clearly erroneous as the retirement age for a member of the contributory scheme could not be altered in an individual case. In the Court’s opinion the erroneous statements made by the Company, while regrettable, could not confer on the Claimant an entitlement that he could not have had under the rules of the scheme of which he was a member.
Both elements of the claim before the Court are intrinsically linked to the question of his contractual retirement age. The abatement element of his early pension was determined by the number of remaining years up to his contractual retirement age. Similarly, the purpose of the supplemental pension was to bridge the gap between retirement age and the age at which a State social welfare pension would become payable. In the case of a person retiring at age 65 the rationale for this supplemental pension would not apply.
The Court notes that the Rights Commissioner issued a comprehensive and fully reasoned recommendation in this case. Having carefully considered the submissions of the parties the Court cannot identify any element of the findings upon which the Rights Commissioner based his recommendation with which it could disagree.
Accordingly the appeal is disallowed and the decision of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
18th December, 2013______________________
JMcCChairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.