Complainant

Respondent

Anonymised Parties

A Nurse

A Health Service Provider

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-00027794-001

16/04/2019

The Complainant is a nurse and in early 1984 applied for a staff nurse position in the North West region with the Respondent. One of the conditions for this post was the benefit of a pension, specifically that 1956 superannuation legislation would apply to the post. She was interviewed and placed third on a staff nurse panel.

In September 1984 she received a letter from the personnel department of the Respondent offering her a placement as a staff nurse post in a voluntary body which was funded by the Respondent. The terms of the post were the same as if she worked directly for the Respondent; the same pay and same conditions. The Complainant took up the post and signed a contract with the voluntary body. She worked there for 52 months. During this time, she received all pay increments as she would have done had she been working for the Respondent directly. However, it seems that for this period she was not party to the Respondent’s pension scheme but was never told that. She worked for 52 months in the voluntary body during which her service was not broken with the Respondent and she continued to receive all terms and conditions as if she were an employee of the Respondent. The fact that for 52 months her service was not reckonable in terms of her pension only came to the attention of the Complainant years later, at which point she raised a grievance.

In response to this the Respondent denied liability stating that as she had signed a contract to work with a private body, albeit publicly funded, from 1984 for 52 months during which she did not make any pension contributions – and this disentitled her to claim that she should receive a pension from the Respondent.

The Complainant submits that she was recruited by the Respondent. She was offered the post with the voluntary body (which was funded by the Respondent) by the personnel section of the Respondent, her pay and terms and conditions were identical to employment with the Respondent. She did not need to be re-interviewed for a post with the Respondent when she later took up a post with them. Her service was not deemed to be broken for the 52 months. If there was a specific term of condition that was being carved out of her terms and conditions ie an entitlement to a pension, she should have been expressly advised of such, but she was not. If she had known she might not have taken up the post at all but instead waited for the next offer to come along, which would have included all the rights. Every dealing that concerned this post; being interviewed, being offered the job, being paid etc was something conducted with the Respondent alone – not the voluntary body

The difference between a public placement and a publicly funded placement was not explained to her at the time nor at any time.

The fact that she would not get a pension for these years was not explained to her.

She has offered to buy notional service in order to obtain the benefit of a full pension for all her years of service but this is now been set at €87590.80, which is prohibitive.

Initially the Respondent submitted that the complaint was outside 6 months as the issue had come to light many years earlier. However, at the hearing it was accepted that the internal grievance was dealt with in 2018 at which her grievance was not upheld and the complaint to the WRC was brought within 6 months of this grievance outcome.

Substantive defence

The Complainant signed a contract which did not specify entitlement to a pension as her the 1984 terms and conditions with the Respondent had. Nonetheless the Complainant signed this contract. She must be expected to understand what she is signing her name to.

The Complainant for 52 months and during which did not pay any pension contributions to the voluntary body with whom she worked. It cannot be said that she is not on notice of this fact.

It is accepted that in all other respects the terms and conditions of the Complainant’s employment continued as if she had remained as an employee of the Respondent directly. It is also accepted that all dealings concerning the Complainant taking up the post in 1984 was done via the personnel section of the Respondent. It is accepted that she was not informed expressly that the pension benefits that had been set out in the Respondent’s 1984 job offer to the Complainant, would not apply to the private post.

The contract signed is determinative and this is the only agreement that is material to this complaint.

An agreement is conditional upon representations that are made at the time of its formation. Both express and verbal. There is little doubt that the Complainant believed and was led to believe that the position of staff nurse with the voluntary body was being offered to her was on the same terms as she enjoyed since her empanelment with the Respondent. She was told that all the terms and conditions would follow the move and indeed they did and there is no dispute about this. In this respect, it is significant that neither her service with the Respondent was broken by the transfer and her incremental credit entitlement remained unaffected. It is understandable why she believed that she would enjoy all the same terms and conditions as she had enjoyed when she was placed on the panel.

There was an attempt in this Adjudication hearing to find a common ground between the parties. To balance what was a loss of benefit to the Complainant with the fact that she signed a contract in 1984 that was not identical to the Respondent’s terms and conditions and is expected to understand what she is signing.

I am advised that for the Complainant to purchase notional service of 52 months (4.3 years) of loss of pension would cost her €87590.00. This is cost prohibitive to pay but it is also prohibitive for the Respondent to replace.

I find this complaint to be well founded in part. In order to balance the interests of both parties I recommend one of two options to be exercised by the Respondent;

Either that the Respondent accept that of the 4.3 years that are missing from her pension calculation instead be treated as 2.3 years, so that her pension entitlement aged 60 is calculated as a break in pension contributions of 2.3 years.

Or in the alternative that a lump sum of €40,0000 be paid to the Complainant in order to assist her in purchasing notional service of 2 years which will reduce the 4.3 years that are missing.