ADJUDICATION OFFICER DECISION & RECOMMENDATION

 Adjudication Reference: ADJ-00008188

Parties:

Complainant         Anonymised Parties          Respondent

Language Executive                                           A University  

Representatives Benen Fahy Associates               IBEC

Complaints:

ActComplaint/Dispute Reference No.Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00010887-001 19/04/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 CA-00010887-002 19/04/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00010887-003 19/04/2017  

Date of Adjudication Hearing: 23/08/2017 Workplace Relations Commission Adjudication Officer: Louise Boyle

Procedure:

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

Background:

The complainant worked for the respondent since the 1970s, with the exact start date in dispute, as a Language Executive, and after a break in the early 1980’s she resumed work in 1989 until her retirement on 23rd April 2017. Her role involved teaching and promoting the Irish language in the university.

Summary of Worker’s Case - CA-00010887-001:

The worker detailed that she started working with the employer back in 1973 but that her pension does not reflect that date.   In the early years of her employment she was issued with short fixed term contracts for 9 months each year, renewed each September. The worker outlined that being classified as a temporary employee affected her job security, impacted her pension entitlements and was unfair. In around 1995 she requested that her true status, that of a permanent employee, be recognised but said her requests were ignored and she did not put this in writing. She detailed that there is no recognition for her work prior to 2001 for the purpose of pension, despite working with the employer prior to that. She felt if she raised it formally as a grievance that the respondent would have ceased providing work to her and thus did not progress her complaints as she felt she would be victimised. She believed the employer’s pension rules that fixed or part-time work prior to 2001 legislation is not reckonable for pension purposes is unfair and unreasonable.    

Summary of Respondent’s - Case CA-00010887-001:

The employer detailed that they had examined their records and established that she had been paid by the employer since 1976, not 1973 as she had claimed, and provided evidence of payroll records to support that.   It was detailed that the monies paid to her prior to 2005 showed that she was always employed on a part-time basis and that as it was a part-time job she could not have been paid for a full-time job; therefore, she had no entitlement to a full-time position according to the rules of the Scheme and that furthermore, she had never raised it as a grievance.  The respondent highlighted that while the other element of her claim was in relation to the rules of the University’s Joint Pension Scheme Statute; she had been treated the same as all other similar employees. Prior to being made a permanent full-time employee, none of her service could be considered reckonable for pension purposes in accordance with the Joint Pension Scheme Statute.  

Findings and Conclusions - CA-00010887-001:

This dispute of the worker, related to the many aspects of her employment including her start date, how she was regarded as part-time instead of full time, temporary instead of permanent and the impact of all of this on her pension. I note also that the worker retired on 23rd April 2017 and expressed how upset she was at having to retire and how her pension was calculated.   While I note that the worker is currently retired, disputes under this Act should have been raised and exhausted at local level through the respondent’s grievance procedure.  Indeed as detailed by the Labour Court, the Workplace Relations Commission should not be the first port of call when a person has a grievance under the Industrial Relations Act and should not be used “to insert itself into the procedural process in a situation where the dispute resolution procedures have been bypassed.” (INT1014 ). The employee did not raise her grievances while she was still employed by the employer.   I can understand that the worker might have been upset that during the early part of her employment she did not feel she had security of employment and I note that she detailed that she mentioned some of her concerns to previous supervisors although no evidence was provided to support this.   Her employer provided pay records dating back to 1976 and detailed that if she had been employed prior that, the pay records would have been available. Therefore, in the absence of any evidence from her to support that she commenced in 1973, I must accept the evidence of the employer.   I also note that the University’s Joint Pension Scheme Statute sets out clearly that her service prior to September 2005 is not reckonable for pension purposes.   While the worker details she was afraid to raise her complaints, some of which go back 40 years, nothing specific has been put forward to support her claims claim and I note that even after the worker established more security of her employment she still did not raise any concerns formally.   I have listened to the worker’s dispute but on the basis of all the evidence, I declare the dispute is not well founded and should fail.  

Summary of Complainant’s Case CA-00010887-002:

The complainant claims that she was only furnished with a permanent contract in September 2005 despite the Protection of Employees (Fixed Term Work) Act 2003 coming into effect in July 2003. Her classification as a temporary employee affected her wages and pension entitlement and she claims that she should have been classified as a full time permanent employee earlier and that the respondent was in breach of the legislation.  

Summary of Respondent’s Case - CA-00010887-002:

The respondent raised a preliminary issue that that complainant did not present her claim within 6 months or indeed 12 months of the contravention to which complaint relates to. Furthermore, as the complainant became a permanent employee in September 2005 she was not covered by the legislation within the meaning of the Act at the time of lodging her complainant.  

Findings and Conclusions Case - CA-00010887-002:

It was alleged that the complainant was only furnished a permanent contract in September 2005 despite the legislation coming into effect in July 2003. However, the complaint was not presented to the WRC until 19th April 2017.   Section 41(6) and (8) sets out that complaints must be referred within a 6-month period or for reasonable cause within 12 months “an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”. On that basis, I declare I do not have jurisdiction to hear this complaint as it does not comply with Section 41(6) or Section 41(8) of the Workplace Relations Act, 2015.    

Summary of Complainant’s Case - CA-00010887-003:

The complainant claims that she did not receive the terms of her employment until February 2006 which was in breach of her rights.  

Summary of Respondent’s Case - CA-00010887-003:

The complainant received her written terms of employment and a copy of the contract of employment in 2005 and thus the complainant’s claim is out of time and cannot be heard and that furthermore, she never raised it as a complaint.  

Findings and Conclusions - Case CA-00010887-003:

A copy of the complainant’s terms and conditions was provided which is signed by the respondent on 1 September 2005 and which is signed by the complainant on 9th February 2006. However, the complaint was not presented to the Commission until 19th April 2017.   Section 41(6) and (8) sets out that complaints must be referred within a 6-month period or for reasonable cause within 12 months: “an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”. I, therefore, declare that I do not have jurisdiction to hear this complaint as it does not comply with Section 41(6) or Section 41(8) of the Workplace Relations Act, 2015.  

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints and dispute in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

CA-00010887-001 I declare the dispute is not well founded and should fail.

CA-00010887-002 I declare I do not have jurisdiction to hear this complaint as it does not comply with Section 41(6) or Section 41(8) of the Workplace Relations Act, 2015.

CA-00010887-003 I declare I do not have jurisdiction to hear this complaint as it does not comply with Section 41(6) or Section 41(8) of the Workplace Relations Act, 2015. 

Dated:   11th January 2018 Workplace Relations Commission Adjudication Officer: Louise Boyle

Key Words: Industrial Relations, Pension, Fixed Term, Terms and Conditions