Complainant

Respondent

Anonymised Parties

Manager

Health Care Facility

Representatives

 Forsa

 IBEC

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-00017289-001

06/02/2018

I have considered the issues raised by the parties and their representatives herein. The Complainant is a Manager in the Respondent specialised Health care facility which provides services to persons with disabilities and their families. The Complainant has worked with the Respondent since 1990 and was a member of the workplace Defined Benefit Pension Scheme which operated in the workplace. This was a private pension.

In and around 2016, the Defined Benefit pension scheme was unexpectedly and hurriedly closed down.

The Respondent is classified as a Health Agency pursuant to Section 38 of the Health Act of 2004. The employees are deemed to be public servants. Department of Health pay scales are applicable to employees and their basic salaries are entirely funded through the Health Service Executive.

The Complainant and her colleagues who had been members of the Respondent Defined Benefit scheme were without a Pension scheme until the Voluntary Hospital Superannuation Pension Scheme agreed – in recognition of their employment status under Section 38 - to absorb these employees following an Industrial Relations intervention.

It is common case to each of the parties that there had been a practise in the Respondent entity to supplement some individual employee salaries over and above the salary recognised through the HSE Section 38 funding. I accept that this was presumably in recognition of the skill, commitment and expertise which individuals contributed to this sensitive workplace. This meant that individuals (including the Complainant) were getting paid an annual salary in excess of that which the HSE would consider applicable to the Grade held.

The Complainant was deemed to be at Grade 8 on the Management scale and was getting paid a salary one third higher than the salary which would normally be paid to a person at that Grade.

When she was with the Defined Pension Scheme the Complainant’s pension contributions and those of her Employer were calculated on the basis of the full salary which she was receiving.

The Complainant was not party to any of the negotiations undertaken by the Respondent with the Health Service Executive and the Trustees of the Voluntary Hospital Superannuation scheme (VHSS). She was given no say in determining the terms and conditions to be applied for the new entrants.

Since becoming a member of the VHSS for pension purposes, the Complainant has been advised that (having been deemed to be a Grade 8 Manager) only that portion of her salary appropriately payable to a Grade 8 Manager will be considered for the purpose of calculating the pension contributions.

I was advised by the Respondent’s representative that the reason for this, is that both the HSE and the VHSS will only recognise that portion of the Complainant’s salary which is identified on the HSE payscales as being appropriate to her grade can be used to calculate pension contributions – the compliant salary. This direction, I have been advised, came from the Department of Public Expenditure and Reform.

In response to this direction, the Respondent without warning and/or discussion with the Complainant set about re-configurating the Complainant’s monthly payslip. Now, instead of her salary reading the full figure, the salary is divided up with only three quarter being described as “salary” and one quarter being described as an “Allowance”. I understand both figures are subject to the same deductions. I have been told that this artifice has been utilised so as to distinguish between that portion of the salary which can be recognised for Pension purposes (Per DEPR) and that portion which cannot be so recognised i.e. the allowance.

On balance, I cannot see any justification for the Respondent doing what they have done. In my view what was a salary before 2016 continues to be a salary after 2017. If the HSE and the VHSS have a legal and or policy justification for the operation of the Pension scheme in the way that they have, then that should be able to withstand the Complainant’s salary being correctly described as her salary. The Complainant is entitled to have her full salary recognised as her salary. No portion of her salary is an allowance.

I recommend that the Complainant’s entire salary be recognised and acknowledged as her salary and that the description of a portion thereof as an “allowance” be removed from the face of the payslips and any other remunerative documents.