ADJUDICATION OFFICER DECISION

Correction Order made on foot of Section 41(16)

of the Workplace Relations Act 2015

 Adjudication Reference: ADJ-00003796

Parties:

        Anonymised PartiesA Public Servant A Government Department  

Complaints:

ActComplaint Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 CA-00004816-001 25/05/2016 Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 CA-00004816-002 25/05/2016 Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 CA-00004816-003 25/05/2016  

Date of Adjudication Hearing: 02/12/2016                                               Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints  

Background:

The requirements of confidentially have meant that detail which might normally be included in relation to this complaint has been omitted to avoid identifying the parties.

Summary of Complainant’s Case:

The complainant holds a senior position in the public service. His complaint under Section 16 of the Protection of Employees (Fixed Term Work) Act, 2003 (The 2003 Act) is that he is denied access to a Contract of Indefinite Duration, and under the Protection of Employees (Part Time Work) Act, 2001, (The 2001 Act) also to pension benefits appropriate to the circumstances of his office, by which is meant access to enhanced annual contributions which are granted to the comparators who are the appropriate comparator for the complainant. What makes it appropriate in this case derives primarily from the fact that both the complainant and the comparators are not in what might be described as ‘career’ civil service positions where typically a person joins at a young age and whose pensions are calculated at one eightieth per year of service. The multiplier per year of service pension for the comparator in this case is calculated at one forty eighths per year of service to take account of the late entry necessitated by the level of experience to qualify for appointment. Both the complainant and the comparator are categories of employee which require significant and quite specific skills and experience and would generally be recruited to their respective positions in mid-career. It is a matter for the complainant to select the comparator and all that is required is that the nature of the work performed by the complainant is of equal value having regard to such matters as skill, physical or mental requirements, responsibility and working conditions. The complainant says that his work is at least equal and more probably higher in value that the comparators due to the level of responsibility associated with the position. A detailed submission was made of the complainant’s range of duties. There are no objective reasons justifying the separate treatment of the complainant.  

Summary of Respondent’s Case:

The respondent conceded at the hearing that the complainant has a contract of indefinite duration. The respondent did not dispute the range of duties submitted on behalf of the complainant. However, it disputes the appropriateness of the comparator. There are many professional grades within the civil service with similar qualifications to the complainant in this case who are on the general civil service pension multiplier, and this is the correct one for the complainant  

Findings and Conclusions:

As noted above the complaint under the Protection of Employees (Fixed Term Work) Act 2003, insofar as it relates to the complainant’s entitlements to a contract of indefinite duration, was not disputed by the respondent. The issue that falls for decision (and it is submitted under both Acts) is whether the complainant is being treated less favourably as a part-time employee than the comparator grade, notably in respect of the basis on which his service should be calculated for pension purposes. Section 9 (1) of the Protection of Employees (Part Time Work) Act 2001 provides that a person shall not, in respect of his conditions of employment be treated in a less favourable manner than a comparable full time employee. Conditions of employment are defined in Section 3(1) of the Act as including pensions ‘including conditions for membership of the scheme or arrangement or entitlement to rights thereunder and conditions related to the making of contributions to the scheme or arrangement’. Section 7(2) of the Protection of Employees (Part Time Work) Act 2001 provides that an employee is a ‘comparable employee’ if that person and the complainant are employed by the same employer or associated employer and one of the conditions referred to in section 7 (3) are satisfied. These are that; a)       Both perform the same work under the same or similar conditions, or each is interchangeable b)      The work performed by one of the employees concerned is of the same or a similar nature and that any differences are either small in nature or occur infrequently, and c)       The work performed by the complainant is equal or greater in value to the work performed by the comparator. The complainant relied on c) above and stated that he had been treated as being comparable in the public service bench marking process. I find that the comparator selected is an appropriate one for the purposes of the complaint. I find that the complainant fulfils all the criteria required by the 2001 Act and that his work is equal or greater in value to the work performed by the comparator grade. No objective grounds were offered to justify separate treatment under the pension scheme. Accordingly, this complaint the Protection of Employees (Part Time Work) Act 2001 that he should enjoy the same pension arrangement as the comparator succeeds, specifically in respect of the basis used to calculate his service at 1/48th per year of service for the purposes of calculating his final pension. His contractual status as an employee with a contract of indefinite duration was not disputed and in any event is established by operation of law. Accordingly, the complaints under the Fixed Term Work act are superfluous and fall. I find that his entitlement to equal treatment to the comparator grade in respect of his pension calculation is established under the Protection of Employees (Part Time Work) Act 2001.      

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. I uphold complaint CA-00004816-001, as being well founded. In respect of the pension complaint the respondent should arrange to apply to the complainant the pension terms applicable to the comparator in respect of the multiplier of his years of service for the purposes of calculation of his final pension i.e. one forty-eighths for each year of his service. I find that the complainant has a contract of indefinite duration by operation of law and therefore complaints CA-00004816-002 and CA-00004816-003 fall.  

Dated:   08/03/2017                                             Workplace Relations Commission Adjudication Officer: Pat Brady

Key Words: Contract of Indefinite Duration, part time work, pension entitlements,  

 ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003796

Complaints for Resolution:

Date of Adjudication Hearing: 02/12/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Adjudicator’s Introductory note

The requirements of confidentially have meant that detail which might normally be included in relation to this complaint has been omitted to avoid identifying the parties.

Complainant’s Submission and Presentation:

The complainant holds a senior position in the public service. His complaint under Section 16 of the Protection of Employees (Fixed Term Work) Act, 2003 (The 2003 Act) is that he is denied access to a Contract of Indefinite Duration, and under Protection of Employees (Part Time Work) Act, 2001 (The 2001 Act) also to pension benefits appropriate to the circumstances of his office, by which is meant access to enhanced annual contributions which are granted to the comparators who are the appropriate comparator for the complainant.

What makes it appropriate in this case derives primarily from the fact that both the complainant and the comparators are not in what might be described as ‘career’ civil service positions where typically a person joins at a young age and whose pensions are calculated at one eightieth per year of service.

The multiplier per year of service pension for the comparator in this case is calculated at two forty eighths per year of service to take account of the late entry necessitated by the level of experience to qualify for appointment.

Both the complainant and the comparator are categories of employee which require significant and quite specific skills and experience and would generally be recruited to their respective positions in mid-career.

It is a matter for the complainant to select the comparator and all that is required is that the nature of the work performed by the complainant is of equal value having regard to such matters as skill, physical or mental requirements, responsibility and working conditions. The complainant says that his work is at least equal and more probably higher in value that the comparators due to the level of responsibility associated with the position.

A detailed submission was made of the complainant’s range of duties. There are no objective reasons justifying the separate treatment of the complainant.

Respondent’s Submission and Presentation:

The respondent conceded at the hearing that the complainant has a contract of indefinite duration.

The respondent did not dispute the range of duties submitted on behalf of the complainant.

However, it disputes the appropriateness of the comparator. There are many professional grades within the civil service with similar qualifications to the complainant in this case who are on the general civil service pension multiplier, and this is the correct one for the complainant.

Findings and Conclusions

As noted above the complaint under the Protection of Employees (Fixed Term Work) Act 2003 insofar as it relates to the complainant’s entitlements to a contract of indefinite duration was not disputed by the respondent.

The issue that falls for decision (and it is submitted under both Acts) is whether the complainant is being treated less favourably as a part-time employee than the comparator grade, notably in respect of the basis on which his service should be calculated for pension purposes.

Section 9 (1) of the Protection of Employees (Part Time Work) Act 2001 provides that a person shall not, in respect of his conditions of employment be treated in a less favourable manner than a comparable full time employee. Conditions of employment are defined in Section 3(1) of the Act as including pensions ‘including conditions for membership of the scheme or arrangement or entitlement to rights thereunder and conditions related to the making of contributions to the scheme or arrangement’.

Section 7(2) of the Protection of Employees (Part Time Work) Act 2001 provides that an employee is a ‘comparable employee’ if that person and the complainant are employed by the same employer or associated employer and one of the conditions referred to in section 7 (3) are satisfied.

These are that;

1. Both perform the same work under the same or similar conditions, or each is interchangeable

2. The work performed by one of the employees concerned is of the same or a similar nature and that any differences are either small in nature or occur infrequently, and

3. The work performed by the complainant is equal or greater in value to the work performed by the comparator.

The complainant relied on c) above and stated that he had been treated as being comparable in the public service bench marking process. I find that the comparator selected is an appropriate one for the purposes of the complaint.

I find that the complainant fulfils all the criteria required by the 2001 Act and that his work is equal or greater in value to the work performed by the comparator grade.

No objective grounds were offered to justify separate treatment under the pension scheme. Accordingly, this complaint the Protection of Employees (Part Time Work) Act 2001 that he should enjoy the same pension arrangement as the comparator succeeds, specifically in respect of the basis used to calculate his service at 2/48^th per year of service for the purposes of calculating his final pension. His contractual status as an employee with a contract of indefinite duration was not disputed and in any event is established by operation of law.

Accordingly the complaints under the Fixed Term Work act are superfluous and fall. I find that his entitlement to equal treatment to the comparator grade in respect of his pension calculation is established under the Protection of Employees (Part Time Work) Act 2001.

Decision:

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

I uphold complaint CA-00004816-001, as being well founded. In respect of the pension complaint the respondent should arrange to apply to the complainant the pension terms applicable to the comparator in respect of the multiplier of his years of service for the purposes of calculation of his final pension i.e. two forty-eighths for each year of his service.

I find that the complainant has a contract of indefinite duration by operation of law and therefore complaints CA-00004816-002 and CA-00004816-003 fall.

Dated:   8^th March 2017