ADJ-00011280

Complainant

Respondent

Anonymised Parties

A Garage Superintendent

A County Council

Representatives

Gerard Kennedy SIPTU

Aoife Duke

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 81(e) of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

CA-00015092-001

13/10/2017

The Complainant was seeking to have certain overtime included for pension purposes on the basis it was mandatory, regular and rostered. Subsequent to the Hearing the parties shared further data relating to the claim and requested time to engage on the issue. In November 2018 the Complainants Representative advised that the discussions had not reached a conclusion and requested the Adjudicator to issue a decision on the claim.

The Complainant was employed from 1970 as a Mechanic.

He was appointed Garage Superintendent in 2001 and held that position until his retirement in 2009.

As part of his duties he was appointed DOE Inspector and was responsible for the testing of all vehicles for DOE purposes.

This required the Complainant to work weekends as this was the only time that the buses could be tested due to the requirement to keep the buses available for work during the week.

In the three years prior to his retirement the Complainant had to work 33 weekends in order to ensure the DOE tests involved were completed to ensure the DOE certs were valid.

The overtime was regular and rostered and part and parcel of his conditions of employment.

The Complainant listed two Comparators whose overtime was similar and whose overtime was adjudicated by the WRC and the Labour Court to be eligible for pension purposes.

The Complainant has been treated less favourably than another person and under the terms of the Social Welfare (Miscellaneous provisions) Act 2004 which amended the Pensions Act require that this claim be dealt with as an Equality Claim. As such section 6.1 of the Employment Equality Act 1998 applies.

The overtime involved meets the requirements of the Public service criteria for inclusion in pension calculation.

Overtime worked for DOE purposes has not been included for pension calculation purposes.

The Complainant was appointed to the current position on November 18th 1999.

The Complainant was working under the direction of a Executive Engineer as Approved Officer.

No previous Superintendent was given the value of DOE overtime for pension purposes. They were given an addition five days leave as recompense for carrying out these duties. The Complainant was given an additional five days leave also. It was clear at all times to the Complainant and his Union that this was compensation for carrying out the DOE duties.

The Complainant had previously submitted an internal claim for the overtime to be included for superannuation purposes and this was refused on the basis he was receiving the five additional days.

The Complainant had 2.5 hours per week included for superannuation purposes.

The Respondent   submitted a detailed sheet of all overtime worked by the Complainant from 2000 to his retirement in 2009 and the reasons for each. On no occasion between 2000 and 2007 is DOE overtime identified as being the reason for the overtime. Between 2006 and 2009 DOE overtime was identified as the reason for the overtime on 13 occasions. It is clear from the overtime analysis that the DOE overtime at weekends was not regular (occurring only 13 times in nearly four years) and that the overall pattern of overtime was not regular and appeared to be on an as needs basis. The mandatory requirement to work some overtime at weekends was dealt with by the parties some time ago through a long standing additional leave entitlement and to get a second “bite of the cherry” in additional pension compensation would appear to be a duplication. Accordingly, I find that the overtime worked for DOE purposes does not meet the Public Service criteria to be included for pension purposes as set out and the claim fails accordingly.

Discrimination