ADJ-00002291

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002291

Dispute for Resolution:  

 Date of Adjudication Hearing: 02/08/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

 Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act, and Section 13 of the Industrial Relations Act, 1969, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Attendance at Hearing:

 Complainant’s Submission and Presentation:

The complainant commenced work on a 48 hour week at the respondent station in November, 2005, on a contract basis. At that time, he was   47 years of age. He secured a contract of indefinite duration in 2010, when he was 52 years of age. At that time, 8 workers were made permanent and were issued with entry to the company PRSA scheme rather than the Company Pension Scheme.

The Union understood that the Labour Court addressed the matter of granting access to the pension scheme for the complainant’s co –workers, but by then the complainant was over 50 years of age and did not benefit. 

The complainant was made permanent on 13 September, 2010, almost 5 years after he commenced employment. He received a letter from the respondent on 6 January, 2011,

“You have been appointed to the regular staff (Welfare Scheme only) with effect from September, 13, 2010”.

The complainant stated that he was very aggrieved that he had been prohibited from joining the pension scheme and needed access to the scheme for security, given the poor value of an earlier in life pension scheme . He could see no legitimate reason for his exclusion. It was the complainants understanding that 6:8 co workers were granted access to the pension scheme on securing permanency in 2010. He recalled raising the matter with his Union in 2010.He turned 50 on 1 June 2008. The complainant was unclear whether he had actually been admitted to the Welfare scheme, but he confirmed that he was a member and paid the appropriate contributions to the scheme.

The complainant sought compensation for the loss of being prevented from joining the company pension scheme at a time that he was eligible to join and build a pension for his future retirement.

Respondent’s Submission and Presentation:

It was common case that the complainant had been employed at the respondent transport centre since November, 2005. He joined the company when he was 47 years of age. Initially, this was on a contract basis but he was then appointed to the Regular Staff in September 2010, when he was 52 years old, by means of a contract of indefinite duration.

The respondent submitted that all recruitment to this grade was undertaken on a fixed term/fixed purpose contract at that time. This was to underpin a part automation of service, where some workers were surplus, redeployed or exited on a voluntary severance programme.

The respondent pension scheme provides that individuals who on their date of appointment are 50 years of age or more are not eligible for entry into the pension scheme. The pension is a statutory scheme requiring the passing of a statutory instrument to give effect to any changes. Consequently, neither the company nor the WRC can admit the complainant to the scheme.

The respondent submitted that compensation in respect of denied access to the pension scheme was completely unwarranted. The respondent submitted that there was an onus on the complainant to raise the matter of pension consistent with the 2008 discussions on his contract of indefinite duration. This did not happen and it was unfair of the complainant to wait 8 years to raise this issue before the WRC.

The respondent drew the attention of the Adjudicator to the similarity of the instant case with other claims currently before the WRC. The respondent rejected the claim and contended that it was opportunistic and that compensation was completely unwarranted. If the complainant was admitted to the scheme, he would be facing a €28,000 repayment plan.

On the request of the Adjudicator, the respondent submitted a copy of the pension scheme a day after the hearing. This was helpful.

 Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.

 Legislation involved and requirements of legislation:

This case is referred under Section 13 of the Industrial relations Act 1969, which permits me to investigate the dispute and make a recommendation to the parties setting forth my opinions on the merits of the Dispute. 

Recommendation: 

I have listened carefully to the parties in this case and I have considered their respective submissions .The complainant submitted that his exclusion from the pension scheme is both inequitable and unjustified. The respondent submitted that there was no avenue option to the company, outside the amendment of the scheme by statutory instrument, in which the pension scheme could be opened to the complainant. He gave the example of S.I .63/2016 in April of this year, where the scheme was amended by a revised age of retirement to 66 for members.

The opportunity to contribute to a pension in an employment setting is a very valuable condition of employment in terms of recruitment and retention .In this case, this value crystallised when the complainant described the inadequacy of an earlier pension into which he had paid 20 years of contributions ,which was now of no material benefit to him . I appreciate that this is not of the respondents making, it just serves to capture the “real time “profile of the complainant.

The respondent submitted that the “Rules of the scheme” preclude admission. Access to the scheme rests on appointment to the “regular staff” and an age criteria of 50 up to April 2016 and 51 after that.

The Pension Scheme

I have reviewed the pension booklet which does not purport to be a legal interpretation of the scheme. I have also examined the Statutory Instruments from 2004-2016. I chose this period as being consistent with the complainant’s employment and the implementation of the Protection of Employees (Fixed Term) Act, 2003 in this country.

 I have found that the pension scheme at hand is a very comprehensive Defined Benefit scheme for members. Membership is compulsory upon appointment to the Regular Wages Staff, provided the worker is over 20 years of age and not over 51 years of age .It has all the usual inclusions of Death Benefit, access to early retirement , Additional Voluntary contributions ,Spouses and Children benefits . There is provision for amendments to the scheme by the Minister for Transport in consultation with the company and the unions.

 The Contract of Employment

I have examined both contracts submitted by the complainant dated November 2005 and May 2006.These were subsumed into a contract of indefinite duration in September 2010 by notification of being “appointed to the Regular Staff”. This was when the complainant was permitted to join the PRSA scheme.

Both contracts provided for a 48 hr working week on a fixed term basis and were referred to as whole time employment. There is a provision to alter terms and conditions during the currency of the contract by agreement.

Fixed Term Employment

In 2005 Labour Court Case: Stead V Irish Rail FTD 052, the Court determined that an employee had been unfavourably treated under the Protection of Employees (Fixed Term) 2003, Act. Mr Stead was an engineer who availed of redundancy when the uncertainty around his contract renewal became unclear.

“The respondent did not deny that the defined benefit pension scheme applies to the permanent employees and not to the (fixed term worker) appellant. The rules of the scheme exclude such workers from entry to the scheme. Similarly, the respondent did not deny that G.P. Medical Scheme applies to the permanent employees and not to the (fixed term worker) appellant. The respondent did not put forward arguments under the ‘objective grounds’ to justify the differences in treatment of these schemes. Therefore, the Court finds Mr. Stead was treated less favourably than the comparable permanent employees, and this constitutes less favourable treatment by the respondent, contrary to section 6 of the Act.”

The redress was compensation as Mr Stead had left the company.

The complainant was 47 when he commenced employment at the respondent company; this was 8 months after Stead. I understand that he has worked continuously at the respondent company since that date and plans on continuing in this role until retirement.

In 2010, the Rights Commissioner (r-085517-ft-09/TB) required the respondent to admit the complainant into the Welfare Scheme in addition to confirming a contract of indefinite duration .This case was taken under the fixed term legislation. It was appealed to the Labour Court on quantum as the company had agreed to both the contract of indefinite duration and the welfare scheme . The Labour Court stipulated that the complainant establish a set contribution to the scheme to secure re-imbursement .Iarnrod Eireann V Anthony Leader FTD 1018.

I am struck by the reportage that six out of the eight workers who received contracts of indefinite duration were admitted to the pension scheme. I find that there may have been different classifications of workers on an administrative basis i.e.

Contract V Regular Wage Staff

However, the complainant has undertaken the same work since November 2005 on a whole time contract, albeit on a fixed term basis until his contract of indefinite duration was confirmed in September 2010, 9 months post the date determined by legislation .This document did not alter any of the complainants terms and conditions outside tenure, welfare scheme inclusion and PRSA scheme.

This is not a claim under the Fixed Term Act, as the respondent correctly identified, the time lines for that have long since eroded. The Industrial Relations Act is not bound by the same temporal limits. It is fair to state that there is considerable jurisprudence available on this issue within the “fixed term” domain.

Having concluded my investigation, I find that there are a number of compelling reasons why I should recommend the complainant for entry to the company pension scheme from his initial date of appointment in November 2005, when he was 47 years of age.

1 The complainant was appointed to the company in November 2005.He was paid a regular wage from that date forward on a fixed hours and fixed term basis.

2 The Labour Court found that exclusion of a fixed term worker from the company pension scheme was a breach of Section 6 of the Fixed Term Act, 2003. I cannot ignore this precedent. The Rights Commissioner granted access to the company welfare scheme to Mr Anthony Leader in 2010, again in Fixed Term Act , setting .

3 The complainant works alongside workers who are full members of the scheme, his continued exclusion is inequitable and is bound to act as a de-motivator if not addressed in the short term. Everyone worries about family security in the event of an adverse event or illness, the complainant is no different in that regard and his proximity to a supportive pension scheme, which remains outside his reach, needs to be addressed in real time.

4 There is provision in the contract of employment to action this recommendation either on an individual or collective agreement.

 Based on all the circumstances of the case and the rationale given, I recommend that the company invite the complainant to join the company pension scheme from November 1, 2005, the commencement date recorded on the complaint form to WRC. I prefer this redress of rectification rather than compensation .This recommendation is addressed solely to the complainant and is not applicable outside those circumstances.

Patsy Doyle, Adjudicator.

Dated:   7/11/2016