ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000506
Complaint(s)/Dispute(s) for Resolution:
Act
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
CA-00000769-001
30/10/2015
Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998
CA-00000769-002
30/10/2015
Date of Adjudication Hearing: 04/05/2016
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
Introduction
The complainant was employed as a Higher Executive Officer in a Government Department from June 1982 until June 2006. On 1st September 1988 the complainant was compulsorily enrolled in the Spouses' and Children's Scheme and paid contributions to that scheme until his retirement on ill-health grounds on 2 June 2006. The complainant believes that he was "shanghaied" into the scheme but should have been allowed whether he wished to join the scheme or not. As deductions for the scheme were automatic he also argues that these deductions were made without his consent and were therefore unlawful.
CA-00000769-001 (Payment of Wages Act)
Regarding the claim under the Payment of Wages Act the complainant submitted that the deductions made from his pay for the scheme were made without his consent as he had been forced to join the scheme. This scheme was and is unjust and such deductions should never had been made.
The complainant referred to cases in the UK where insurance companies were selling insurance to people who could never make a claim and forced to repay the premiums.
CA-00000769-002 (Employment Equality Act)
The complainant submitted that he has had a very difficult life suffering serious physical and psychiatric illnesses which have played a very detrimental part in his life. These illnesses have prevented the complainant from ever forming lasting relationships and have made it impossible for him to ever marry. Continuing ill-health will make it impossible for him to ever marry.
The complainant is seeking a refund of the contributions he paid to the Spouse's and Children's Scheme as he was not given the option of opting out of the scheme, unlike previous public service pension schemes. He argues that due to his disability he has no prospect of marrying and therefore he can never benefit from the scheme. He believes that automatic enrolment in the scheme amounts to discriminatory treatment on the disability ground.
He also cited a passage from a book entitled "Employment and Career Progression of People with a Disability in the Irish Civil Service" (IPA 2000) which he says supports his claim that civil servants with a disability are less likely to marry.
In reply to questioning the complainant stated that he had not sought a refund of contributions through any internal mechanisms and he had not sought a refund of contributions until he wrote to the Minister of Public Expenditure and Reform in 2015.
Respondent’s Submission and Presentation:
CA-00000769-001 (Payment of Wages Act)
The respondent submitted that enrolment onto the scheme was, and remains, automatic and therefore was not illegal. They also submitted that as the claim refers to deductions made more than six months ago the claim is out of time.
CA-00000769-002 (Employment Equality Act)
The respondent submitted that it was obligatory for civil servants to join the revised Spouses' and Children's scheme when it came into operation in 1988, that the rules of the scheme must be adhered to for all members and the rules cannot be changed. From 1988 enrolment onto the scheme was automatic. This scheme operates across the entire Civil service and entrance is still automatic.
The main difference between the original scheme and the revised scheme is that the revised scheme covers marriages after retirement (the original scheme did not). This being the case the new scheme does not refund contributions when an unmarried member retires. As a consequence the complainant was not entitled to a refund of contributions when retired from the Civil Service.
The respondent also submitted that the Commission on Public Service Pensions, 2000, considered the Spouses' and Children's Scheme and recommended that there be no change to the rules providing for automatic membership nor in the refund arrangements for membership contributions (Para 20.5.2).
Conclusions
In making my decision I have taken into account all submissions both written and oral from both parties.
CA-00000769-001 (Payment of Wages Act)
Section 6 of the Payment of Wages Act, (complaint to adjudication officer under section 41 of Workplace Relations act 2015) refers. Under that Act, "an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates." In this case the date of the contravention to which the complaint relates dates back to 2006 and is therefore out of time.
CA-00000769-002 (Employment Equality Act)
In relation to the above matter I must refer to the Employment Equality Act. Remuneration in the Employment Equality Act is defined as; “remuneration”, in relation to an employee, does not include pension rights but, subject to that, includes any consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment;"
I am satisfied that the matters complained about in the case concern the rules of a pension scheme and having considered the respondent's submission and taking into account the definition of "remuneration" under the Equality Acts, which excludes pension rights, I am satisfied that I have no jurisdiction to deal with the disability complaint under the Equality Acts.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Having investigated the complaint I hereby make the following decision:
(i) CA-00000769-001 (Payment of Wages Act), the complaint is outside the outside the allowed time for such a complaint and thus fails.
(ii) CA-00000769-002 (Employment Equality Act), with regard to the complaint of discriminatory treatment on the disability ground under the Employment Equality acts, I have no jurisdiction in the matter.
Dated: 1st June 2016