Worker

Employer

Anonymised Parties

A Retired Firefighter

A Local Authority

Act

Dispute Reference No.

Date of Receipt

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

CA-00013993-001

18/09/2017

The Worker is a retired firefighter. The Worker retired from the service on 1st April 2017 and submitted his disputes in relation to the calculation of his superannuation entitlements to the WRC on 19th September 2017. The first dispute relates to an additional payment in respect of Good Friday and the second dispute relates to the payment in respect of three “privilege days”.

On 18th October 2018 the parties requested an adjournment of the Good Friday part of the dispute to undertake further action as agreed between the parties. The dispute in respect of the Good Friday payment was withdrawn at the hearing on 6th December 2018.

SIPTU on behalf of the Worker submits that the dispute relates to a payment of eight hours flat rate in lieu of each of three “privilege days” (24 hours actual pay) originally granted to outdoor staff of the Employer on an annual basis during the Christmas period.

SIPTU claims that, having received his pension calculations, the Worker initially raised queries in April 2017 with the Employer’s pension department in relation to this payment being excluded from the calculation of his pension but did not receive an acceptable response. On 1st September 2017 the Worker formally wrote to Mr C, Head of Finance seeking a review of his pension. In response Mr C wrote to the Worker on 3rd October 2017 seeking further details in relation to his request. SIPTU submits that this letter was responded to by the Worker in 13th October 2017 and to date this correspondence remains unanswered.

SIPTU claims that, to protect the jurisdiction of his claims the Worker had submitted the Complaint Form to the WRC in September 2017.

SIPTU argues that, historically indoor / officer grades within the Employer had an additional three days annual leave granted in the form of privilege days by the incumbent City Manager. In 1997 SIPTU pursued a claim to the Labour Court to seek the application of these days to the outdoor staff including the Fire Service. This claim was rejected by the Labour Court. However, the then City Manager decided to grant the disputed days for 1997 only. Due to the requirement of the Fire Service to remain operational this facility was granted in the form of a bonus payment of 8 hours basic pay (for each of the three days) at flat time rate, effectively 24 flat time hours. SIPTU submits that in the subsequent years up to 2001 these days were again granted by the City Manager. From 2001 onwards these three days have effectively become part of the annual leave entitlement for all staff covered since 1997. SIPTU claims that since 1997 the Worker has received the payment of an additional 24 hours flat pay every day up to his retirement date. SIPTU contends that this pay is part of core pay and as such should be included for the purpose of pension calculations. In support of this contention it must be borne in mind that the payments received by the staff who actually receive the time off and associated payment for these three days is regarded as pensionable service for the purposes of superannuation.

SIPTU submits that the Pension Ombudsman has clearly identified that the appropriate mechanism for dealing with disputes of this nature is through the industrial relations machinery of the State. SIPTU argues that this position has been validated by both the Adjudication / Rights Commissioner Service and the Labour Court who have heard and issued decisions in respect of pension entitlements on an individual basis in respect of staff employed by this Employer.

SIPTU requests that a decision is issued requiring the Employer to recalculate the Worker’s pension to fully incorporate the payment identified in this complaint.

The Employer submits that the Worker retired from his position as Fire Fighter on 1st April 2017 and was awarded a pension and lump sum under articles 70 and 71 of the Local Government (Superannuation)(Consolidation) Scheme, 1998.

The Employer submits that on 2nd May 2017 the Worker queried the 24 hours payment for privilege days and asked how he could appeal the non-inclusion of this figure in his pension calculations. The Employer responded to his query on 17th May 2017 informing him that privilege days are given as ex-gratia payment which is not a pensionable allowance and therefore not eligible for pension purposes.

The Employer submits that a further query was received from the Worker in 8th August 2017, wherein he questioned the placing of a zero value against some of Good Fridays. Following a review request from the Worker Mr C, Acting Director of Service wrote to the Worker on 3rd October 2017 seeking further information. The Employer claims that it has no record of receiving a reply to this letter.

The Employer submits that on 14th August 2018 the Worker wrote to Ms B in the HR Department stating that he had not got a reply to his query. Ms B informed the Worker that the last record on file was the letter of 8th October 2017. She asked if the information requested could be supplied. The Worker responded by email stating that he had replied and enclosed a letter dated 13th September 2017. The Employer notes that this letter predates Mr C’s request for further information. The Employer submits that in the meantime the Worker referred a complaint to the WRC in relation to this matter.

The Employer submits that the granting of privilege days is a matter for the Chief Executive. Privilege days were the subject of a Labour Court determination in 1997 in which SIPTU sought application of three privilege days at Christmas to outdoor staff, which has traditionally been granted to indoor staff. The Labour Court did not recommend concession of the union’s claim. However, in December 1997 as a gesture of good will the then City Manager agreed to extend the concept of privilege days to all employees for 1997, but only on condition that costs be kept to a minimum and that it did not affect the provision of services by the Employer. The Employer submits that the arrangements for the Fire Brigade were set out in a letter dated 22nd December 1997 to SIPTU as follows:

“due to manning difficulties it has been decided that the privilege day concession is to be a bonus payment of 8 hours basic pay (for each of the 3 days) at flat time rate, effectively 24 hours flat time to each non officer member of staff. This concession will have a nil effect on rostering arrangements. It should be noted that staff on sick leave / maternity leave do not qualify for this concession.”

The Employer submits that a national review of allowances was completed by the Department of Public Expenditure and reform (DPER) in 2012. Circular letter EL 02/2012 provides the basis for this review. Under the terms of the Circular each authority was required to submit a business case in respect of any of its current allowances being paid to staff (other than certain named national allowances) where it felt such allowances were required on an ongoing basis. The Employer did not consider payment for privilege days as an allowance and consequently this matter was not submitted to the DPER as part of this review.

The Employer argues that the DPER approval is required to the payment of any allowance. The matter of treating this payment as an allowance has only arisen at this stage as a direct result of this complaint. The Employer is now required to apply for retrospective approval of the payment of this allowance. Should this approval not be given the complaint will in fact become moot. The Employer submits that the fact that the payment was offered on a discretionary basis following a dismissal of a claim by the Labour Court of a union claim will obviously be considered by the DPER in its consideration of such application by the Employer.

The Employer submits that the pensionability of allowances is a matter of strict control across the public service and therefore are subject to significant scrutiny before they can be considered for pensionability. Before any consideration can be given, the bona fide of what is being considered has first to be confirmed as an allowance which requires it to be a payment in respect of specified duties which are permanent or quasi-permanent and are continuous or regular. The Employer does not believe that this payment meets that criteria.

The Worker claims that this payment should be considered a pensionable allowance. The Employer submits that this has never been a pensionable payment, and nothing has changed in this regard since the original Labour Court decision. The Employer submits that this payment is an ex-gratia payment paid to fire fighters for privilege days, but this is non-reckonable. An ex-gratia payment is an amount paid from a sense of moral obligation rather than because of any legal requirement, therefore it is a sum of money paid when there is no obligation or liability to pay it. The Employer submits that this payment is effectively a payment in lieu of additional days off so other staff who receive the benefit of additional days off accrue no pensionable benefit from same. There is therefore no basis for treating firefighters more beneficially than other staff simply because of the methodology applied.

The Employer submits that concession of this claim would have significant impact across the civil and public sector where a significant number of allowances are considered non-pensionable.

The Employer submits also that the Local Government Superannuation Guide published in 2006 is clear in stating that “payments such as gratuities, merit pay etc. are not pensionable”.

The Employer also submits that there was an acceptance and agreements between the parties at the hearing that these three days represent annual leave. It was accepted by both parties that these three days are paid in this manner as the Fire Service have not been in a position to date to accommodate the granting of these three days as actual time off for annual leave having regard to manning levels. The Employer reiterates that it is continually reviewing its working arrangements and reserves the right to grant these three days as annual leave, if and when the staff complement and working arrangements allow the Chief Fire Officer to do so. The Employer submits that all sections are continually reviewing their business operation and the fire service is no different in this regard. The current reviews will consider the current method of payment for this annual leave through incorporation into the actual annual leave. The review will also consider the wider operational functioning of the service, and how the service might best be delivered, possibly within the context of a revised shift system.

In conclusion, the Employer submits that there is no merit in a claim for pensionability of an ex-gratia payment for privilege days at Christmas. Privilege days are at discretion of the Chief Executive. The Labour Court recommendation upholds this principle. The payment of 24 hours flat time to the fire fighters remains a good will gesture under the prerogative of the Chief Executive. The Employer submits that it is perverse that this good will gesture, which was originally granted on the basis of cost minimisation should now be utilised as a too, to enhance individual pension awards.

Moreover, the Employer submits that DPER approval is required for payment of allowances. The Employer has never considered this an allowance. The continued ability of the Employer to pay same must now be considered.

The Employer argues that there is no basis for treating firefighters more beneficially than other staff simply because of the methodology applied to the payment for these days.

Having considered the parties submissions I find that the matter of the privilege days has been negotiated and implemented collectively. I note that the matter was referred by SIPTU to the Labour Court in 1997 on a collective basis and it was a subject to a Labour Court Recommendation whereby the Court did not recommend the concession of the Union’s claim. Subsequently, the privilege days were granted to all employee grades on a yearly basis and the matter has been dealt with on that basis since. The benefit arises from a collective engagement between the Employer and the Union of which the Worker is a member. It is, therefore, my view that any dispute arising from that, due to its nature, ought to be dealt with collectively and an Adjudication Officer should not encroach upon any collective arrangements between the parties. It is evident that the outcome of within dispute has far-reaching implications for a broad cohort of similarly situated employees and any recommendation issued in that regard would have clear collective implications.

I, therefore, find that this dispute is not appropriate for an Adjudication Officer’s recommendation and on that basis, I find that I have no jurisdiction to issue recommendation in that regard.

On the basis of the submission made by the parties, and having considered the provisions of the Industrial Relations Acts, I have decided that the issue before me is by its nature a collective issue and, therefore, I have no jurisdiction to hear this dispute.

Collective dispute- firefighters