Complainant

Respondent

Anonymised Parties

An Employee

Public Transport Provider

Representatives

Dermot O'Leary National Bus and Rail Union

Sean Walshe

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00003158-001

13/Mar/201613/Mar/2016

The claimant commenced employment with the respondent in February 1997 and asserted that he worked 84 hours per week , 7 days a week. In his complaint form the claimant asserted “ I have been refused access to the Penson Scheme and I believe I should be allowed to”.He stated that his employment was regularised in 2004 but he was not a member of the Pension Scheme. He asserted that 2 other colleagues in similar circumstances to him were facilitated in joining the Scheme and complained that this was inequitable and unfair. It was submitted on the claimant’s behalf that the impediment of a Statutory Instrument relied upon by the respondent was not credible ; his union argued at the first hearing that Statutory Instruments are adopted as a matter of routine and could be amended to facilitate the claimant’s access to the Pension Scheme.

Following the first hearing , the claimant undertook to submit a written submission addressing the arguments made by the respondent and enclosing the documentation upon which he was relying but which was not presented at the initial hearing.A considerable time lapse arose in relation to the submission of these documents and the respondent was strongly critical of the claimant’s failure to honour the undertakings given at the first hearing.

In a later submission presented at the Feb. 2018 hearing , the union   was contended that the 2 individuals who were facilitated in accessing the pension scheme , commenced in 1984 (Ms.H) and 1996(Mr.C).It was contended that although the claimant started just 6 months later than Mr.C he was treated in an entirely different manner.It was submitted that “ It is strange that only 2 people in these listings who are in the pension scheme were the only 2 seemingly appointed prior to 2000”.It was argued that the respondent had contended in another case that an individual was denied access to the pension scheme because he commenced employment post 2000 , yet the claimant commenced in 1997 and was still treated less favourably to his 2 colleagues.It was submitted that the respondent was doing “ their utmost to cover up these events”.

It was submitted that the claimant has since been unfairly dismissed and that this was a matter of separate proceedings.

It was contended that “ none of these gatekeepers have signed and dated copies of their contracts of employment which is fundamental in these employees not being aware of their conditions of employment and is a clear contravention of the law”.

The union sought that the claimant be awarded an equivalent sum to that “ had he been in the pension scheme and a weekly pension to the actuarial life expectant age for an Irish male , 81”.

The estimated figure calculated by the union was €93,124.75.

The respondent took issue with the delay in furnishing the additional information sought by the WRC and asserted that a recommendation should have issued in the absence of any further submissions from the union.

It was submitted that the claimant’s perception that 2 colleagues were admitted access to the pension Scheme after the age of 50 and were consequently comparable to the claimant , was incorrect. It was contended that the matter had been raised on behalf of the claimant by way of a Parliamentary Question and the response to same had clarified that the individuals in question were admitted to the Scheme “ 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 50th.birthday , they would not have had the option to join the Scheme”.

The relevant Statutory Instruments were submitted into evidence.The claimant’s assertion that the individuals were treated in a different manner because they were trade union representatives was categorically denied.

It was submitted that the claimant’s allegation that he was operating in the dark and had received no information on the Pension Scheme was unfounded and a form signed by the claimant(30.09.2004) confirming receipt of the explanatory booklet on the pension scheme was submitted into evidence.

It was submitted that the company’s calculations demonstrated that if joining the Scheme was actually an option , it would be so unattractive financially that it made no sense to take the matter further. Under the current rules , the claimant “ would have to retire at age 66 if he joined the Scheme – Retirement at age 66 would yield him a lump sum of €11965.75 and a weekly pension of €104.05.The arrears required would amount to €48,791.33.

The claimant had the option to apply for voluntary severance – capped at 2 years salary – yielding the claimant a payment of €57,964.20.Not being a member of the Pension Scheme , the claimant had the option to remain working until 70”.

It was submitted that the Equality Tribunal had determined in DEC-P2013-001 that the respondent had acted in a lawful manner in refusing access to the pension scheme on the grounds of age when the rules precluded such entry.

I have reviewed the evidence presented at the hearings and taken account of the submissions made by both parties as well as the accompanying documentation.

I acknowledge the claimant’s deep sense of grievance regarding his perception of unfair treatment. Noithstanding this , it was been accepted by the claimant that the comparators relied upon by him were both appointed before the age of 50 and were consequently covered by the rules of the Pension Scheme. In such circumstances , the only means by which the claimant’s claim can be conceded is by way of an amended Statutory Instrument – I have no jurisdiction to so recommend and accordingly I do not uphold this complaint.