ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003623

Dispute for Resolution:

Date of Adjudication Hearing: 8th November 2016

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 13 of the Industrial Relations Act 1969 an 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.

Summary of Trade Union Case:

NBRU said the Complainant commenced work for the Respondent on 23^rd March 2000. He left           full-time employment in a factory to commence employment as a gatekeeper on a full-time basis with the Respondent and he was aged 42 years old at the time.

NBRU said that in June 2003, an Agreement was reached between the Respondent and the Trade Unions called ‘New Deal Proposal for Resident and Non-Resident Level Crossing Keepers.’   NBRU said that up to that point gatekeepers were working in excess of 80 hours per week.   A copy of the Agreement was submitted to the Hearing.

A letter was received from the HR Manager of 7^th January 2004 was received and it describes a derogation in the Organisation of Working Time Act to allow for recruitment to limit the working week of gatekeepers to an average of 48 hours.

A document received by the Complainant from his personnel file, details comparable colleagues, who were appointed in 2004 (the names and staff number have been removed by me):

1. Started on 03/02/2000 and appointed on 11/11/2004

2. Started on 18/09/2000 and appointed on 15/09/2004

3. Started on 31/07/2001 and appointed on 20/09/2004

4. Started on 20/06/2000 and appointed on 24/08/2004

NBRU said although this document is not complete, it describes a trend whereby the majority of the Complainant’s gatekeeper colleagues were appointed in 2004.

NBRU submitted a copy of a Form ‘Appointment to the Regular Wages Staff’.   They said this Form was completed, recommending the Complainant for appointment on 31^st December by the named Station Manager. The Form was then stamped by the named District Manager on 12^th January 2006.   Finally the Form was rubber stamped on 1^st August 2006 and the Company stamp can be seen on the upper right hand side of the Form (Copy submitted to the Hearing).   NBRU submitted that this is the effective date of appointment of the Complainant and at that stage he was 48 years old and was fully eligible to be entered into the Pension Scheme for Regular Wages Staff.

NBRU said it is the contention of the Respondent that gate keepers were recruited on a temporary basis to suit the business needs of the Company.

NBRU referred to a letter of 12^th June 2015, from the named Industrial Relations Manager stating that as of June 2015 it has been 6 years since the Complainant was appointed.   This letter also states that gatekeepers were temporary employees to suit business needs.   NBRU questioned why a worker would be recommended for an appointment as a permanent worker if the Respondent only required them on a temporary basis.

NBRU said the gate that the Complainant has operated is still not automated, reinforcing the point that this work has always existed and that there was no ‘business case’ not to appoint him in 2006 or thereabouts.

NBRU said that while the Complainant remained unappointed he received no temporary contract; furthermore, in a request under the Data Protection Acts he requested a full and complete copy of his personnel file and no temporary of permanent contracts of employment were within that file.

After a further two letter from NBRU, a letter dated 3^rd May 2012 was produced and it was allegedly held ‘off file’.   It is the view of NBRU that this letter does not satisfy the requirement to be a contract of employment and they said it is another example of the shoddy treatment that the Complainant received at the hands of the Respondent.

NBRU said that as a consequence of him not being entered into the Pension Scheme for Regular Wages Staff, the Respondent have saved a potential €28,000 to date with another 9 years contributions still to be paid.  

NBRU said that to date the Complainant has given 16 years of loyal service to the Respondent with an exemplary record.   NBRU said the Complainant was treated differently to others as illustrated above.   NBRU said he has no written contract of employment despite working for the Respondent for the last 16 years and they said this is due to either accidental or deliberate failings in the Respondent systems and administration.

NBRU said they were seeking that the Complainant be compensated for the delay in his appointment which resulted in his non-entry to the Pension Scheme, which has saved the Respondent €28,000.   They said the Complainant has been 3 years with no access to the Welfare Scheme and with irregularities around his contract of employment.

NBRU said they do not accept the assertion that the Complainant was a temporary worker and that this status was based on a business need that has not changed in 16 years.

NBRU said that of the 3 employees working his gate, he was the only one not appointed.

Following the submissions of the Respondent NBRU submitted the following.

NBRU said the Respondent’s assertion that a business case for the Complainant’s appointment was not established until 2008 is very hard to justify for the following reasons:

1. The Complainant worked on a full-time basis from his start date to date.

    

2. The Complainant was the only gatekeeper in the area of 3 simultaneous level crossings not to be appointed by 2004 and 6 named employees were all appointed

    

3. The crossing where the Complainant had predominantly worked for the last 16 years is known as a C Level Crossing and this means the crossing is closed to road traffic all the time and is only opened by the Crossing Keeper when a member of the public wishes to cross the line.   NBRU said these types of crossings are used in a very quiet and secluded area and are usually (as in this case) dead ends or very remote local roads.   During any automation programme a ‘C’ type crossing is deemed to be the least dangerous to road or railway users and in an area of an extensive Automation Programme would not be seen as a priority and the one is question is of today still not automated.

    

4. NBRU said the Respondent have let the Complainant slip through the net for appointment through their negligence, thus denying him an entry into the Pension Scheme he qualified for if he had been appointed with his comparable colleagues in 2004.

    

5. NBRU said the issue of a 6 month delay in the Complainant’s eventual appointment is a ‘red herring’ as it would not have had any material effect on his entry into the Pension Scheme had be been appointed in 2004

For all of the forgoing reasons NBRU sought that the claim be upheld.

Summary of Respondent’s Position:

The Respondent said that the claim made is that the Complainant has been treated less favourably is accessing the Pension Scheme in comparison to a small number of colleagues and this alleged less favourable treatment concerns the age of entry into the Scheme upon becoming a regular appointed member of staff.   The Respondent said the rules of the Scheme require that an employee must be between the ages of 20 and 50 upon appointment.   The Respondent said that these rules are enshrined in statue as both of the Pension Schemes are Statutory Schemes requiring the passing of a Statutory Instrument for any changes or amendments.

The Respondent said the Complainant is currently employed as a Level Crossing Keeper in a named location.

The Respondent said that the Complainant is basing his claim on his perception that 2 other colleagues were admitted to the Pension Scheme at after the age of 50.   The Respondent said that this perception is incorrect and an answer has been provided to the Complainant on more than one occasion   - and this includes a response to a Dail Question raised by a TD on behalf a named colleague.   The response to the Dail Question is as follows:

“SI 226/1957 specifically excluded level-crossing keepers from membership of the (named) Pension Scheme for Regular Wages Staff.   This was amended by SI 120/1992 to allow for the entry of         non-resident level-crossing keepers, and subsequently by SI 93/2001 to allow for the entry of resident level crossing keepers.”

For both categories of level-crossing keepers, the SI’s state that such a staff member; “shall not become a member of the Scheme, unless within a time and in a manner to be specified by the Board, he exercises a once-off option to become a member” i.e. membership is not mandatory, the Board may offer membership in the manner of their choosing.”

As resident level-crossing keepers, the two individuals specified were given the option mentioned in the SI to join the Pension Scheme for regular Wages Staff in 2005.   Their entry to the Pension Scheme was effective from their date of appointment, as is usual.   Although they were over age 50 in 2005, they had been appointed prior to age 50 and as such were eligible to join the Scheme, contingent on arrears from their appointment date being paid and satisfactory medical.   These conditions were met by both staff members.   Had their date of appointment been after their 50^th birthday, they would not have had the option to join the Scheme.”

Copies of the Statutory Instruments referred to were submitted to the Hearing.

The Respondent said the Complainant has maintained that these 2 employees were treated in a different manner because they were trade union representatives; from what is outlined above clearly this is not the case.

The Respondent said the Complainant has also raised issues in respect of the length of time it took for him to be appointed to his position.   The Respondent said that issue has also been addressed with the Complainant and he was informed that the practice and agreement at the time was that Level Crossing Keepers were recruited into temporary positions based on business needs and the service requirements in a particular area.   In relation to this the Complainant has always been treated in line with agreements and discussions with his representative Trade Union at that time.   This has also been reflected in correspondence, which states inter alia

“It was normal practice at that time to have gatekeepers working in temporary positions based on business needs and service requirements.   Following representations made by their trade union the Company regularised a number of staff including (two named persons).   It has now been 10 years since M was appointed to the regular ad 6 years since B was appointed.”

The Respondent said that the Complainant has been facilitated with many meetings to discuss and explain his situation; the most recent facilitated by the Director of Human Resources, who undertook to examine the situation in respect of the hypothetical financial aspects if the Complainant was afforded entry as against non-entry.   He also undertook to employ an independent third party to examine the claim.   When the financial aspects were examined it became apparent that if joining of the Scheme was actually an option it would be so unattractive financially that it made no sense to take the matter further.   Details were provided in that respect.

The Respondent referred to what they described as a somewhat similar claim dealt with by the Equality Tribunal in 2013.   That claim concerned a person who commenced employment with the Respondent at aged 52.   Upon retirement he took a case to the Equality Tribunal and in their decision the Tribunal clearly states that the Respondent acted in a lawful manner in not allowing an employee into the Pension Scheme on the grounds of age, when the rules precluded such entry.

The Respondent said the Complainant is asking them to do something that is beyond their power or influence, i.e. change legislation.   The Respondent said that similarly the Complainant is asking the Adjudicator to also do the impossible or at least recommend something that is beyond their remit, i.e. change legislation

Upon the production of an Adjudication Officer Recommendation (ADJ-00002349 refers)in relation to the Complainant and them on the same issue the Respondent pointed out that this recommendation, which was not appealed by the Complainant had rejected his claim for entry to Pension Scheme.

The Respondent submitted the claim should be rejected for the following reasons:

• The Complainant has been dealt with fairly, in line with legislation and in line with his colleagues

   

• Any concession to the Complainant has potential knock-on implications for the Respondent

   

   

• If is were possible, entry into the Pension Scheme would make no financial sense for the Complainant.

   

• Neither the Respondent nor a WRC Adjudicator has the authority to give the Complainant what he seeks.

   

• Previous cases before the Equality Tribunal and the WRC support the Respondent’s position in respect of entry age into the Pension Scheme.

For all of the foregoing reasons the Respondent sought that the claim be rejected.

Findings and 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.

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation setting forth my opinion on the merits of the dispute.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

I note that in a previous recommendation, ADJ-00002349, involving the same parties the Adjudication Officer recommend as follows:

“I find that as an Adjudicator of the Workplace Relations Commission I do not have the jurisdiction to concede to this complaint on behalf of the Complainant and grant him entry to the Company Pension Scheme, which is determined by Statutory Instrument.   This Statutory Instrument required that employees cannot be given entry to the Scheme if the employee in question is over the age of 50 years when they become regular wages staff.   The Complainant was over the age of 50 years when he became a Regular Wages Employee.

I do not have the jurisdiction as an Adjudicator of the Workplace Relations Commission to amend a Statutory Instrument to allow the Complainant into the Company Pension Scheme.”

I full agree with the logic of the above and apparently the Complainant and NBRU accept that it is the case as they confirm that they did not appeal it.

I am in effect being asked to recommend that the Complainant be compensated for something he was not legally entitled in accordance with law in the form of a Statutory Instrument; indeed this Statutory Instrument expressly prohibits his admittance to the Pension Scheme on the explicit grounds that he was over the age of 50 year when he became a Regular Wages Employee.     However sympathetic one may be for the fact that the Complainant missed entitlement to the Pension Scheme, it is a fact that legally the Respondent could not grant him entry to the Pension Scheme.

Despite my sympathy for the position of the Complainant I cannot accept that it is possible, fair reasonable or even legal to recommend that the Complainant be compensated for the loss of something the Respondent was legally prohibited from granting to the Complainant.

Based on the foregoing I must conclude that I do not see merit in the claim and that it is rejected by me.

Seán Reilly, Adjudication Officer.

Dated:   5^th April 2017