Complainant

Respondent

Anonymised Parties

A Worker

A School

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-00016486-001

21/12/2017

Adjudicator,

1.     The case before you today is in relation to dispute between our member (the complainant) and her employer, (the respondent) in relation to the payment of a non-pensionable gratuity to the complainant on her retirement.

2.     SIPTU contends that the complainant should be paid a non-pensionable gratuity on her retirement the same as other employees in the education sector in a similar position. The case is referred under the Industrial Relations Acts.

Background

3.     The complainant commenced employment with the respondent on the 9th January 1995 on the part-time Caretaking Staff and she has continued to date. Subsequently she was assigned to the School Canteen and she work 27 ½ hours per week.   We attach as Appendix 1 copy of the complainant’s contract signed on the 15th October 2008.

4.     On the 8th September 2016 the complainant wrote to the Pensions Unit, Dept. of Education & Skills enquiring regarding her entitlement to a pension. She received a response from the Department on the 7th December 2016 stating that her employment would have been in a non-pensionable capacity.   Copy of correspondence attached as Appendix 2.

5.     The complainant responded to the Department on the 3rd February 2017 and she received a negative response on the 23rd February 2017, copy attached at Appendix 3.

6.     SIPTU wrote to the School’s Board of Management on the 14th March 2017 regarding conditions for the granting of non-pensionable gratuities and requesting that the gratuity formula be applied to the complainant on her retirement, see Appendix 4. However, the Union did not receive a response.

7.     SIPTU emailed the Secretary of the Board of Management on the 8th May 2017 and we requested that the attached documentation regarding non-pensionable gratuity be brought to the attention of the Board, see Appendix 5. No response was received to this email.

8.     On the 11th October the Department responded to a letter from the School Principal regarding the complainant’s non-eligibility for a gratuity and pension from the School, see Appendix 6.

9.     The Union wrote to the Secretary of the Board of Management on the 20th December 2017 clarifying that the complainant was seeking a non-pensionable gratuity and this issue has not been resolved. Accordingly, the dispute was referred to the Adjudication Services, see Appendix 7.

Union’s Position

10.The complainant has been working for the respondent for 22 ½ years in the non-teaching staff. However, as her post in the Canteen is not a Department sanctioned Caretaker post, then the Department have confirmed that she is not eligible to join the pension scheme for non-teaching employees. However, this situation has arisen previously in the Education Sector and the issue has been acknowledged and resolved through the payment of a non-pensionable gratuity. The complainant is entitled to have her long service with the School acknowledged in this manner.

11.Although the Union have written to the Board of Management twice they have not received a response. In   the SIPTU letter and email to the school the union sets out the conditions for the granting of non-pensionable gratuities, See Appendix 4 & 5. The complainant clearly meets all the conditions for the granting of a gratuity on her retirement.

12.In email to the Secretary of the Board of Management on the 8th May, 2017 the Union provided a copy of letter from the Department to an Institute of Technology clarifying the entitlement of Invigilators to a non-pension gratuity, see pg 15,Appendix 5. Also, memo from another Institute of Technology regarding gratuities for non-pensionable persons, pg 17, App 5. In the interest of fairness, the complainant is employed in a publicly funded school and she is entitled to parity of treatment with other non-pensionable employees in the education sector.

Conclusions

13.Adjudicator for all of the above reasons and taking all the circumstance of this case into consideration, we ask you to find that the complainant is entitled to be paid a non-pensionable gratuity on her retirement as per the agreed formula.

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The respondent’s representative advised that the school employs 47teachers , has 369 pupis and 9 ancillary staff including 2 clerical officers , 2 caretakers , 3 cleaners and 2   employees who run the school canteen and ensure the staff room is cleaned daily.

It was submitted that the claimant was offered an opportunity to enter a savings scheme in 2007 but declined.The Dept. advised in Oct. 2017 , that the claimant was returned on the non-Teaching Staff Census form under the category Cleaning Staff P/T. It was submitted that the claimant’s contract of employment – while entitled Contract for Part-time Caretaking Staff does not identify any duties relating to the role of Caretaker in the school.

It was submitted that the Board of Management of the school are unaware of any “ current arrangements under which a non-pensionable gratuity can be paid” to the claimant.

It was submitted that the school had sought clarification from the Dept. in relation to the Dept. of Finance 25/2008 Circular on a number of occasions but no response was forthcoming.

I have reviewed the evidence presented at the hearing and noted the respective position of the parties.

I note in particular the provisions of Dept. Circular 0062/2014 which makes reference to Dept. of Finance Circular 0025/2008 and provides as follows “ Public Service Reform, Revised arrangements for certain part time public servants dated 21st.May 2008, outlined the options to be offered to employees/ former employees of VEC’s and Institutes of Technology who were serving on or before the 21st.May 2008”.Documentation from Institutes of Technology submitted into evidence support the union’s contention that the Dept. approve the payment of a non pensionable gratuity to persons , “ i.e. Part-time employees , who are not eligible to qualify for a retirement pension and lump sum under the provisions of the Local Government Superannuation Scheme”.No compelling reason was advanced by the respondent or indeed the Dept. of Education in their communications with the claimant for excluding the claimant from the provisions of this Scheme.

The claimant has always worked as a canteen assistant notwithstanding the fact that she is described in her contract of employment as “Part-time Catering Staff”.The Dept. appear to be relying on the school returns which classify the claimant as cleaning staff in declining her application for the gratuity.The claimant has argued that she has been excluded from the pension scheme by virtue of her part time status and has been treated less favourably than her full time caretaker comparators.It is clear from the documentation submitted by the union that the claimant falls into the category of staff catered for by the non pensionsable gratuity and there are precedents for the payment of same in the Institute of Technology sector .As the claimant falls into the category of worker whose service is not reckonable for superannuation purposes , she is entitled to rely on the provisions made for the payment of non pensionable gratuities to such employees .Accordingly , I am upholding the complaint and recommend that the claimant be paid a non pensionable gratuity for her service with the school with immediate effect.