ADJUDICATION OFFICER DECISION AND RECOMMENDATION

Adjudication Reference: ADJ-00013464

Parties:

	Complainant	Respondent
Anonymised Parties	A Lecturer	An Institute of Technology

Representatives

Sarah-Jane Hillery B.L. instructed by O'Mara Geraghty McCourt Solicitors

Lauren Tennyson B.L. instructed by Beauchamps Solicitors

Complaint:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00017660-001	26/02/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00017660-002	26/02/2018
Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00017660-003	26/02/2018

Date of Adjudication Hearing: 25/02/2019

Workplace Relations Commission Adjudication Officer: Andrew Heavey

Procedure:

In accordance withSection 8 of the Unfair Dismissals Acts, 1977 - 2015,Section 79 of the Employment Equality Acts, 1998 – 2015 and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute.

Background:

The complainant was employed by the respondent from 1981 until 31st August 2017. The complaints and the Industrial Relations dispute were submitted to the Workplace Relations Commission (WRC) on 26th February 2018. The cognisable period of the complaints is from 27th August 2017 to 26th February 2018.

The complaints submitted under the Employment Equality Acts 1998-2015 related to allegations of discrimination on the Age and Gender ground and a complaint of discriminatory dismissal in relation to the complainant’s retirement on 31st August 2017 at aged 65 years of age.

Note:

The complainant’s discriminatory dismissal complaint was deemed to have been withdrawn in line with Section 101(4A) (a) of the Employment Equality Act, 1998 in circumstances where the complainant’s previous Solicitor failed to respond to correspondence from the WRC seeking that the complainant elect between a complaint of Unfair Dismissal under the Unfair Dismissal Act, 1977 or a complaint of Discriminatory Dismissal in line with the provisions of the Employment Equality Act, 1998. A further complaint of discriminatory dismissal was submitted to the WRC on 28th August 2018 (ADJ000-17345 refers) and a separate decision will issue on that complaint.

Adjudication Hearing 25th February 2019

At the adjudication hearing on 25th February 2019, the complainant’s representative stated that it was the complainant’s preference to pursue a Discriminatory Dismissal complaint rather than an Unfair Dismissal complaint. The respondent’s representative objected on the basis that there was no discriminatory dismissal complaint before the WRC on that day as it had already been deemed to have been withdrawn in June 2018 when the complainant’s previous Solicitor failed to elect between complaints. In those circumstances the respondent was in a position to defend the Unfair Dismissal complaint, the Industrial Relations dispute and the Discrimination complaints excluding the discriminatory dismissal.

As Adjudication reference (ADJ000-17345) relating to the discriminatory dismissal had not yet been assigned to me and was not scheduled for hearing, I was not in position to consider the specifics of that complaint. As agreed with the parties, and notwithstanding both parties’ positions relating to the complaint of discriminatory dismissal, I proceeded to hear Unfair Dismissal complaint, the Industrial Relations dispute and the discrimination complaints excluding the issue of discriminatory dismissal and informed the parties that ADJ000-17345 would be considered subsequently. A hearing on that complaint was arranged for 11th September 2019.

Naming of the parties

Given the sensitive nature of the within complaints, I have decided to use my discretion and anonymise this decision.

Summary of Complainant’s Case:

CA-00017660-001- Unfair Dismissal Complaint

The complainant stated that her first contract of indefinite duration as a full-time employee with the respondent was on 1st September 2004 as an Assistant Lecturer and subsequently as a Lecturer with effect from 1st October 2009. The complainant stated that there was no mandatory retirement age applicable to her employment and that the contract of employment merely states that the employment is “subject to the normal date of retirement.” The complainant contends that normal retirement age is not defined within the contract of employment or the staff handbook and that there were numerous employees employed at different times with different retirement ages and that there are currently approximately 29 people employed by the Institute over 65 years of age.

CA-00017660-002- Discrimination Complaints

The complainant contends that she was discriminated against on the grounds of Gender, Age, Family Status, in her conditions of employment and “other.” The complainant stated that she was in the employment of the respondent for many years without the opportunity of a permanent contract. The complainant, as a part time employee did not receive maternity entitlements when absent on Maternity Leave for the births of each of her eight children. The complainant further contends that on return from maternity absences, her employment status was changed from Eligible Part Time (EPT) which was reckonable for pension purposes, to Temporary Part Time (TPT) which was not. The complainant contends that as a result of the changes to her employment status and failure on the respondent’s part to apply the correct pension contributions to her, there is a shortfall of approximately 11 years pensionable service following her maternity absences which has greatly diminished her pension entitlements. The complainant submits that this would not have occurred in respect of a male colleague and is therefore discriminatory on the Gender ground. The complainant also asserts that she was also discriminated against on the age ground by virtue of her forced retirement at age 65.

CA-00017660-003 – Industrial Relations Dispute

The complainant submitted a grievance to her employer dated 13th June 2017 in relation to her forced retirement at the age of 65. The complainant stated that she felt that she should not have to retire as she was still capable and interested in remaining in her role.

As part of her grievance, the complainant raised issues in relation to the mismanagement of her employment status over a number of years which resulted in a number of years’ service classified as non-reckonable for pension purposes as well as other issues concerning the calculations used in relation to pension entitlements. The complainant also raised the issue that she was paid incorrectly over a number of years and increments were not applied to her when they became due or at all. In addition, the complainant stated that she was not awarded the correct reckonable service for pension purposes having worked in various roles throughout the 1970’s and 1980’s and that the credit of just 1 year’s pensionable service is not correct given the level of service during those years.

Summary of Respondent’s Case:

CA-00017660-001- Unfair Dismissal Complaint

The respondent contends that the provisions of the Unfair Dismissals Acts, 1977- 2015 has no application to the complainant as she has reached the “normal retirement age.” The respondent stated that the complainant’s contract of employment refers to the Education Sector Superannuation Scheme which at Section 2 provides that:

“compulsory retirement age” means, other than in the case of new entrants – (b) for officers, the age attained by the member on the last day of the school or academic year in which the member attains 65 years of age

And that the term “officer” means:

a lecturer or a non-academic officer

The respondent further contends that, as the complainant was employed by the respondent since 1981, she is not a new entrant as defined in the Public Servants Superannuation (Miscellaneous Provisions) Act, 2004 and therefore does not benefit from the removal of the compulsory retirement age applicable to Public Servants employed after 1st April 2004.

The respondent concluded by stating that in line with the provisions of the Superannuation Scheme applicable to her employment, the complainant was retired at the end of the academic year following her 65th birthday and having reached the normal retirement age, the provisions of the Unfair Dismissals Act do not apply and therefore the complaint is misconceived and should be dismissed.

CA-00017660-002- Discrimination Complaints

The respondent stated that the complaints are out of time on the basis that the incidents of discrimination were alleged to have occurred more than 20 years ago which are manifestly outside of the time limits permitted by the legislation.

CA-00017660-003 – Industrial Relations Dispute

The employer raised a number of issues in relation to the worker’s Industrial Relations referral. The employer argues that the referral does not amount to a Trade Dispute and that the worker does not represent a body of workers. On that basis the employer contends that the claim should be dismissed. The employer further contends that as the subject matter of this dispute overlaps with the Employment Equality and Unfair Dismissal complaints, the worker should elect which piece of legislation she wishes to invoke.

In relation to the specific grievances raised, the employer contends that matters were investigated in line with its procedures at a meeting with the complainant on 5th July 2017. The employer confirmed that it issued its findings to the worker on 18th July 2017 and did not uphold her complaints.

In relation to the specific issues, the employer stated that it was obliged to adhere to the relevant Circular Letters in force at the time of the retirement and it acted in line with the provisions of the Education Sector Superannuation Scheme. In relation to Payscales and Employment Status the employer contends that it also applied the correct Circular Letters applicable at the time and there were no other available options in respect of awarding incremental credit. In relation to pensionable service the employer contends that it carried out a review of the worker’s hours and furnished her with all of the relevant documentation pertaining to her employment. The employer further stated that it made enquiries in relation to the PRSI contributions that were not previously paid on behalf of the worker and was informed by the relevant Education and Training Board that the complainant was engaged in subsidiary employment for the years in question which was not reckonable for pension purposes.

Findings and Conclusions:

CA-00017660-001- Unfair Dismissal Complaint

The complainant contends that she was a new entrant in the Public Service after 1st April 2004 by virtue of her first Contract of Indefinite duration with the respondent which took effect on 1st September 2004. The complainant further states that as a new entrant she is not subject to the compulsory retirement age applicable to Public Servants employed before 1st April 2004.

The Applicable Law

Section 2(1) of the Public Service Superannuation (Miscellaneous Provisions) Act, 2004 states as follows:

2.(1) Subject to subsections (2) to (6), reference in this Act to “new entrant” means a person who is not serving in a public service body, or a body to which Schedule 1 relates, on 31 March 2004 but becomes a public servant on or after 1 April 2004.

Section 2(1)(b) of the Unfair Dismissals Act 1977 states as follows:

2.(1) Except in so far as any provision of this Act otherwise provides, this Act shall not apply in relation to any of the following persons:

(b) an employee who is dismissed and who, on or before the date of his dismissal, had reached the normal retiring age for employees of the same employer in similar employment or who on that date had not attained the age of 16 years,

S.I. 290/2015 (Education Sector Superannuation Scheme) states as follows:

Compulsory retirement age means, other than in the case of new entrants -

for Officers “the age attained by the member on the last day of the school or academic year in which the member attains 65 years of age.

On the basis that the complainant has been employed by the respondent in various roles and under various contracts since 1981, I find that the complainant was not a new entrant within the meaning of Section 2 of the Public Service Superannuation (Miscellaneous Provisions) Act, 2004. Accordingly, the complainant was subject to the compulsory retirement age that applied by virtue of the Education Sector Superannuation Scheme (S.I. 290/2015). As the complainant had reached the age of 65 which was the normal retirement age for the Education Sector at the material time, I find that the provisions of the Unfair Dismissals Acts 1977-2015 do not apply to the complainant’s employment. Accordingly, the complaint cannot succeed.

CA-00017660-002- Discrimination Complaints

As already stated, the discriminatory dismissal element of this complaint is deemed to have been withdrawn. In relation to the other discriminatory complaints, the complainant stated that having returned from a number of Maternity absences, her employment status was incorrectly classified. In addition, the complainant stated that for a number of years, she was not paid the correct rate of pay and there were also no PRSI contributions paid by the respondent in respect of the complainant’s employment. The complainant submits that this has resulted in the incorrect pension entitlements being applied to her which she claims is discriminatory.

The Applicable Law

Section 2 of the Employment Equality Act 1998, at relevant part states as follows:

“pension rights” means a pension or any other benefits flowing from an occupational pension scheme;

Section 8(6) of the Employment Equality Act 1998, at relevant parts states as follows:

Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

The complaints of discrimination as submitted by the complainant relate to issues which occurred over a number of years of the complainant’s employment that have resulted in her receiving reduced pension rights. I note the provisions of the Employment Equality Acts, 1998-2015 above and as pension rights are specifically excluded from the legislation, I find that the complaints cannot succeed.

CA-00017660-003 – Industrial Relations Dispute

The Applicable Law

Section 3 of the Industrial Relations Act, 1946 defines a trade dispute as follows:

trade dispute” means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person and includes any such dispute or difference between employers and workers where the employment has ceased,

I am satisfied that the issues raised constitute a trade dispute within the meaning of the Industrial Relations Act, 1946. While the specific issues have been addressed in the Unfair Dismissal and Employment Equality complaints, once an Industrial Relations (IR) referral is received, an Adjudication Officer is not precluded from issuing a Recommendation on the matter.

In the instant case, the worker raised a grievance in relation to a number of issues that occurred over the years that have greatly affected her pension entitlements. The role of the Adjudication Officer in IR referrals is to consider the grievances raised and if the employer acted reasonably and in line with its own procedures and the provisions of the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000) and if the worker was treated fairly throughout the process.

I have reviewed the documents submitted by the worker and the employer’s findings in respect of the worker’s grievance(s). I note that the worker remains extremely dissatisfied with the grievance findings, however I note the significant efforts made by the employer in its attempts to deal with the entirety of the issues raised. I do not find that there were any procedural deficiencies in the process or any unfairness on the employer’s part towards the worker. Despite the worker’s dissatisfaction with the grievance findings, she has not put forward any evidence from which I could conclude that the process was flawed or that the employer’s findings on the grievances should be changed.

Decisions:

CA-00017660 -001- Unfair Dismissals Act

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Having considered the submissions of both parties and for the reasons stated, I find that as the Act has no application to the complainant, the complaint is not well founded.

CA-00017660 -002 – Employment Equality Act

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Having considered the submissions of both parties, I find that Pension rights are excluded from the provisions of the Employment Equality Acts, 1998-2015. Accordingly, I find that the complaint is misconceived.

Industrial Relations Recommendation:

CA-00017660 -003 – Industrial Relations Act

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

Having considered the submissions of both parties, I do not recommend in favour of the worker.

Dated: 05th February 2020

Workplace Relations Commission Adjudication Officer: Andrew Heavey

Key Words:

Unfair Dismissal, Discrimination, Trade Dispute