ADJ-00018414

Complainant

Respondent

Anonymised Parties

A Gatekeeper

A Transport Company

Representatives

Paul Henry SIPTU

 A HR Manager

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-00023740-001

04/12/2018

The Complainant is seeking to join a Pension Scheme on a back dated basis as she maintains she was not made aware of the offer to join the Scheme.

The case is taken by the Complainant who is employed as Gate Keeper.

In 2014 it came to the attention of our member that she was not in the Wages Grade Pension scheme (hereinafter “the Scheme”). SIPTU have been in correspondence with the company on this issue seeking a resolution however no common ground could be found, it is our position that the Company have put obstacles in our member’s way that have made entry into the scheme difficult if not now impossible.

We are now seeking a recommendation that the company contribute to a Personal Retirement Savings Account (PRSA) to provide a pension equal to what she would be entitled to on retirement had she been in the company pension scheme.

The Complainant joined the Company on 7^th of December 1989 and she was appointed to her position on the 29^th of May 1997.

In July 2003 a notice was issued advising resident crossing keepers that they could join the scheme and qualify for a Pension at retirement. The Complainant did not get the notice. This notice would have been issued on foot of a Statutory Instrument which was an amendment order to allow Resident Railway Level Crossing Keepers to join the scheme. Crossing Keepers in employment on the operative date were to be offered a ‘once off’ option to join the scheme.  

The Complainant believes that she was not made aware of this option and to date no paperwork has been provided to the member or the Union to show that she was given any notice and If she was given any notice (which is denied) she indicated that she did not wish to avail of an offer to join the scheme.

The Complainant made a Subject Access request under General Data Protections Regulations there is no record of any offer on record.

There are however internal communications that clarifies that there was no issue with being admitted to the scheme and there is also a costing on arrears dated 31 July 2016, this information was never provided to the Complainant.

The matter was brought to the attention of the Company in 2014 and SIPTU wrote to the Company on our member’s behalf.

The Labour Court in LRC21520 decided the following:

The Complainant now finds herself in a similar situation to this worker, she had always believed that she was included in the pension scheme. In 2014 she was making an application for voluntary severance she discovered she was not in the scheme. SIPTU looked to have this matter progressed through conciliation in the first instance. However, this avenue failed and a case was submitted through the adjudication service in December 2018.

The Complainant becomes ineligible to join the scheme due to her age on the 13 March 2019.

As set out before you all efforts were made to get the information to allow the Complainant to join the scheme, the amount of arrears may have been prohibitive or may not have been, simply put the Complainant could not make such a decision without the proper information to allow for a decision of this magnitude to be made. It is worth noting that the notice of 11 July 2003 provided a facility to allow arrears to be paid once again this was not put to the Complainant.

We would there ask you to recommend the following:

 That the Company did not facilitate the Complainants entry into the scheme.  

The company facilitate the Complainant with a PRSA scheme where the Company would contribute the balance required to generate benefits comparable to those to which she would otherwise have been entitled under the Company Pension Scheme like the one recommended by the Court in LRC21520.

And or in the alternative recommend compensation that is just and equitable in the circumstances.  

The specific complaint is that the Complainant was offered entry to the Pension Scheme alongside other staff, but she refused to join the Scheme but now wishes to join the Scheme.  

The offer to join the scheme was a once off offer in 2003.

The Scheme is covered by a Statutory Instrument allowing a once off offer to join the Scheme.

In July 2003 a Staff Notice was issued to all affected staff and detailed the offer, the rules of the Scheme and that they should contact the Personnel Office if they wished to join the Scheme.

The Complainant did not apply to join the Scheme and the Respondent believes she was aware of the offer and some employees choose to join the Scheme and some did not.

The option to join the Scheme was only available in 2003 and has been closed since.

It is difficult to conceive that the Complainant was not aware of the offer due to high Union representation at the time.

The Respondent must comply with the Statutory Instrument and cannot allow the Complainant to join the Scheme.

Having heard the submissions, no clear evidence was available to the Hearing that the Complainant was made personally aware of the offer or that she had formally declined the offer to join the Pension Scheme. For a matter as important as a Pension it would appear to be good practice that any person is individually notified of an offer and their acceptance or rejection noted on their Personnel file. This is not the case in this claim. It is highly conceivable that a person may not take notice of a public note placed in their place of work.

As the date in which the Complainants age made to impossible for her to join the Scheme (she became ineligible the day after the Hearing) the only option for the Adjudicator to consider in this case is a PRSA.

The Labour Court has previously taken the view in a similar case that the Company should make application to the Pension Scheme to admit the Claimant to membership retrospective to their first day of employment with both parties making their full appropriate retrospective respective contributions to give full effect to that.

I recommend that the Company should provide the Complainant with a PRSA that will provide comparable benefits to those that the Complainant would receive had she been so admitted to the Company Pension Scheme. The Complainant must contribute to the PRSA in the same amount as she would have been required to contribute had she been admitted to the Pension Scheme and the Company to contribute the balance required to generate benefits comparable to those to which she would otherwise have been entitled under the Company Pension Scheme. The retrospective amount due from the Complainant should be paid over a period of time to be agreed between the parties, but I would recommend a repayment period of not less than three years, or such other time as the parties may agree. 

Pension Scheme