ADJUDICATION OFFICER RECOMMENDATION

Adjudication Decision Reference: ADJ-00003304

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 1^st - (6^th of September) and 2^nd - (14^th of November) 2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and the abovementioned Act, 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:

The complainant submits that she was regularised in an acting role prior to her retirement with consequent negative impact on her pension entitlement and that the respondent failed to notify her of the fact in advance. She seeks appropriate remedy to ensure that she is at no loss.                              It is common case that she was appointed to her acting position in November 2008 and that she was regularised in the position from October 2013. Her pension was calculated on her final three years salary at the new rate and that calculation falls short of her entitlement had she not been regularised in the acting position. It is asserted that the respondent had a duty to alert the complainant to the fact that her pension would be negatively impacted in the particular circumstances. There was an obligation contained in the respondent’s own rules to do so. The actual deficiency amounts to approximately €1,700 in lump sum and €540 per annum by way of pension.

Respondent’s Submission and Presentation:

The respondent submits that the complainant is no longer an employee (she retired on the 30^th of November 2015) and that her complaint was received by the WRC on the 27^th of May 2016. Accordingly relying on the authority of the Labour Court in several named cases I lack jurisdiction under the Act to make a recommendation in the matter.                                                                                        In any event the rules of the pension scheme are clear and concise, are provided for in legislation and have been applied meticulously by the respondent. They can’t be varied. There is an appeal system open to the complainant within the scheme and she is obliged to use it. She has sought relief under an earlier scheme which is not possible as the current scheme which is in operation since 2008 has been agreed with the trade unions and enshrined in law. The complainant has benefited from her regularisation and this is reflected in her pension. Her assertion that she would have been better off is speculative.

Decision:

The preliminary point is well made and I am bound by the authority of the Labour Court in this matter and as such not in a position to make a recommendation favourable to the complainant as petitioned. That said I note that there is another avenue open to her. Furthermore the issues in contention here are of collective import which also impinges on my jurisdictional authority.

Dated:   05/04/2017