Complainant

Respondent

Anonymised Parties

A Health Worker

A Health Provider

Representatives

 Solicitor             Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00012297-001

05/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012297-002

05/07/2017

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

CA-00012297-003

05/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00012297-004

05/07/2017

The Complainant has been working with the Respondent as a sessional Clinical Psychologist since 1st November 1990. She has a dispute about access to the pension scheme, the start date of her employment and the salary scale applying to for pension purposes. She has referred the dispute under the Industrial Relations Act. She is also claiming an entitlement about her level of pay under the Payment of Wages Act 1991.

The Complaint CA-00012297-002 under the Organisation of Working Time Act, 1997 was withdrawn at hearing.

The Complainant stated that she started working as a sessional Clinical Psychologist with the Respondent on 1st November 1990. She said that she worked part-time and was paid per 3-hour sessions. She became a fulltime worker on the 1st of October 1992 and continued to be paid per 3-hour sessions worked. The complainant said that she has been 27 years in the employment and she has been excluded from the Model Superannuation Scheme. The Complainant said that she previously had taken High Court proceedings in relation to issues about her employment which were resolved in July 2016. She said that during the proceedings, questions were raised with the employer about being admitted to the superannuation scheme and she has been seeking access to the scheme since then.

The Complainant said that she endeavoured to resolve the issues about access to the scheme through the internal dispute resolution procedures without success. The Respondent has conceded that she is entitled to be admitted to the pension scheme but disputes the date her employment commenced. She was initially offered access to pension scheme based on a start date of 1st December 2008. The Respondent subsequently offered her access based on an employment commencement date in 1995. The Complainant rejects this offer and is seeking a commencement date for pension purposes of the 1st November 1990. She states that her P60’s from 1991 to 2017, furnished in evidence, provides factual evidence and confirms that her status as a pensionable employee throughout her 27 years of employment.  

The Complainant is also is seeking admission to the pension scheme on a scale commensurate with her salary. The Respondent has put forward a proposal that her salary for pension purposes should be calculated at the top of the basic psychologist pay scale. The Complainant is paid at a sessional rate of €183.77 per 3-hour session and her yearly remuneration is €111,873 and the top of the basic psychologist pay scale is considerably less. It was submitted on behalf of the Complainant that the difference in remuneration and that of clinical psychologists at the top of the scale should be considered for pension purposes as a pensionable allowance.    

The respondent submitted that there is some degree of uncertainty in respect of the Complainant’s commencement date as an employee of the Respondent. The Complainant has claimed in her WRC complaint form that she commenced with the Respondent in November 1990 as an independent contractor and then became an employee in January 1995. The Complainant has now asserted a different commencement date as an employee of November 1990.

The Respondent suggested a commencement date of December 2008, but having considered the submissions of the Complainant, the Respondent is willing to agree for the purposes of any pension proposal that the commencement date will be a date in 1995, with the exact date to be agreed between the parties.

The Complainant’s claim that she should have a particular level of remuneration recognised for pension purposes, but the Respondent objects to the Adjudicator making any recommendation in respect of the terms of the Complainant’s pension. It submitted that the only recommendation that should issue from the Workplace Relations Commission is a recommendation that the Complainant be afforded access to a pension scheme with a commencement date in 1995 (as conceded by the Respondent) and on terms to be determined by the Respondent.

The Respondent further submitted that the Complainant only asserted an interest in joining the pension scheme for the first time in or around November 2016. They accept that the Complainant is entitled to be enrolled in the Respondent’s superannuation scheme and this has been confirmed to the Complainant. The Respondent has liaised with the relevant lead Department over the last year or more to determine the terms upon which the Complainant is to be offered access to the pension scheme.

The Respondent submitted that it is a general condition of public service pensions that pensionable remuneration for the purposes of calculation of pension benefits is determined by reference to salary scales approved by the Minister for Health, with the consent of the Minister for Public Expenditure and Reform, in accordance with the rules of the respondent’s Employee Superannuation Scheme 2010 (SI 362/2010).   Part 6 is headed “Pensionable Remuneration” and provides that: Salary means the annual basic rate (or the weekly basic rate multiplied by 52.18) of remuneration payable from time to time as lawfully determined or lawfully approved by the Executive, and the Minister for Health and Children, with the consent of the Minister for Finance …”

The respondent submitted that the “sessional” rate upon which the Complainant’s pay is based is not approved by the Minister for Health or the Minister for Public Expenditure and Reform as a rate of pay to be used for determining the remuneration of employees for pension purposes.The sessional rate of pay on which the complainant’s remuneration is based is not an approved rate of pay for pension purposes. It was stated that sessional rates of pay generally apply to health professionals providing services on a contract for service basis and were, and are, higher than the rate which would be applied to a wholetime comparator employed in the health sector. This higher rate is paid (in part) in compensation for the lack of access to such benefits as, inter alia, a pension scheme.

I note following the hearing of this dispute the Respondent has been offered the Complainant access to the pension scheme based on a commencement date of 1995 and based on a salary for pension purposes on the top of the clinical psychologist salary scale i.e. €85,886 and subject to the payment of arrears of superannuation contributions by the Complainant. The Complainant has rejected the offer and is seeking to have the portion of her remuneration which is in excess of the top clinical psychologist scale treated as a pensionable allowance.

I note that the grading structure and salary structure within the Respondent’s psychology services is as follows:

Clinical Psychologist known as staff grade the scale is from €50, 582 to €85,886 maximum;

Senior Psychologist salary scale is from €79,918 to €93,491 maximum;

Principal Psychologist salary scale is from €92,844 to €107,225 and

Director of Psychology Services salary scale from €100,948 to €116,900.

The Complainant as a sessional worker is paid €183.77 per 3-hour session which equates to an annual payment of €111,873. The Complainant’s position within the psychologist services is comparable to the Clinical Psychologist staff grade and she is seeking to have the portion of her remuneration, which exceeds the maximum point on the scale (€85,886), treated as a pensionable allowance for the purposes of the superannuation scheme.

I note that the Complainant is seeking access to the superannuation scheme, but in my opinion if she is seeking the benefits of the grade of Clinical Psychologist, she must accept the conditions attaching to that grade, including salary scales for pension purposes. If the Complainant’s current remuneration is the relevant one for pension purposes it would mean she would have a salary scale for pension purposes in the region of that applicable to the Director of Psychology Services, a position she does not occupy

I recommend that the Complainant accept the offer made to her by the respondent i.e. that the remuneration for superannuation purposes be set at €85,886.

In relation to the to the start date of employment, I note that the Complainant stated on the complaint form she submitted to the WRC that she was contracted by the Respondent in November 1990 on a contract for service and that she became a full-time sessional employee in January 1995. I note that the respondent has now accepted 1995, as the date of commencing employment. In the circumstances, I recommend that the commencement date for pension purposes should be set at the 1st January 1995.

I recommend the Respondent pay the Complainant the sum of €5,000 compensation to assist in resolving the dispute.

I recommend that the Complainant accept the offer made to her by the respondent i.e. that the remuneration for superannuation purposes be set at €85,886.

I recommend that the commencement date for pension purposes should be set at the 1st January 1995.

I recommend the Respondent pay the Complainant the sum of €5,000 compensation to assist in resolving the dispute.

The Complainant is seeking pay restoration following the cuts imposed under the FEMPI legislation, the first increase was due to commence in April 2017. She submits that having been subject to deductions under the FEMPI legislation she is entitled to have her pay restored. She said following the introduction of the Public Service Stability Agreement pay restoration commenced in April 2017, but she has not been granted any increase.

She said that she was subject pay reductions under the FEMPI legislation in excess of what should have been applied and following the issuing of proceedings in the High Court the matter was settled and the deduction was corrected to the correct rate, and arrears were reimbursed to her. She states she is entitled to have her pay restored as per the agreement which applies to her from April 2017.

The Respondent submitted that the Complainant litigated a pay claim before the High Court in December 2015, including a claim that the FEMPI reductions were applied incorrectly to her. Having reviewed the Complainant’s pay the Respondent concluded that she was not paid correctly. As part of a settlement agreement the Complainant was paid a sum of money including back pay. The back pay paid to the Complainant was based on a three hour sessional rate of €183.77 back dated to January 2010. Following the settlement in July 2016, this rate continued to be applied to the Complainant’s pay. The Respondent submitted that following guidance received from the relevant Departments, it was concluded that the Complainant has been overpaid because in calculating the rates of pay utilised to calculate the back pay, the FEMPI pay related reductions were not correctly applied.   The reduction in in remuneration under the FEMPI Act 2013 which applied to all public servants was not applied to the Complainant’s remuneration because of this mistake.   The rate applicable to the Complainant of €183.77 for a 3 hour session should have been reduced by virtue of the 2013 FEMPI reductions. It was submitted as the complainant did not suffer a reduction in remuneration in 2013, she is not entitlement to any restoration of pay in April 2017.

The Financial Emergency Measures in the Public Interest (No. 2) Act 2009 is amended by the insertion of the following sections after section 6 provides:

“…

Restoration of remuneration affected by operation of section 2A

6C. (1) The amount by which the annual remuneration of a public servant stands reduced by virtue of section 2A, being the annual remuneration the amount of which, as so reduced, is not less than €65,000 or €110,000, as the case may be, shall—

(a) in accordance with this section, and

(b) as regards payment of that remuneration occurring on or after the relevant date specified in this section, 5 be restored to the public servant.

(2) The amount by which the annual remuneration of a public servant stands reduced by virtue of section 2A, the amount of which, as so reduced, is not less than €65,000 and not more than €110,000, shall—

(a) as to one half of the amount of that reduction, be restored to the public servant on 1 April 2017, and

(b) as to the other half of the amount of that reduction, be restored to the public servant on 1 January 2018.”

The respondent has submitted that there has been no “unlawful deduction” or ongoing deduction from the Complainant’s salary and the Respondent is not in breach of the Payment of Wages Act, 1991.

The Complainant is claiming that the respondent is in breach of Section 5 of the Payment of Wages Act when she was not granted an increase in her remuneration in April 2017, in accordance with the provisions for the restoration of reductions which occurred under FEMPI 2013. The reference in the Complainant’s submission to pay increases for 2018 is not a matter for decision before me as this claim was referred on 5th July 2017, and before these increases were due in 2018.

I am satisfied from the evidence presented by the Respondent that the Complainant did not suffer any reduction to her remuneration as per the 2013 FEMPI reductions which was due to a miscalculation by the Respondent. I note that the Complainant was paid €183.77 per 3 hour session from 1st October 2010 to the present date.   Therefore, the Complainant cannot be entitled to an increase under the conditions for the restoration of remuneration for public servants who were subject to the FEMPI 2013 reductions. I find therefore that the complaint is not well founded.

I find that the complaint is not well founded.

Industrial Relations Act pension access, date of starting work, Payment of Wages Act, 1991