Complainant

Respondent

Anonymised Parties

Clerical Officer

Public Transport Provider

Representatives

Pat O'Donoghue SIPTU

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-00034729-001

19/02/2020

The Employee is claiming that he was a victim of a historical error which placed him in the wrong pension scheme and is claiming compensation.  The Employer denies that any error was made and notwithstanding this position, submits that the Employee has not suffered any   financial loss therefore the claim should be rejected. Both sides agreed at the outset that the pension schemes alluded to are statute-based schemes and that any recommendation I arrive at cannot contravene the rules of the pension schemes. 

This dispute concerns an error on the part of the Employer whereby the employee was entered into the incorrect pension scheme. The Employee submits that whereby he was appointed to a clerical position with the Employer he was not entered into the clerical pension scheme. The position of the Employer appears to be that while the complainant is a clerical employee his pension entitlement remains as per his former role within the company.

The Employee began his employment with the respondent in January 2004 but due to restructuring within the company he was put on a 3-month secondment to a clerical post following his applying and completing an entrance exam.  The Employee remains in this post to the present time.

Despite the Employee having exceeded the 3-month period of secondment he was not in receipt of any further communication from the respondent as regards the status of his employment. The Employee however was not in receipt of the appropriate pension for this grade.  It transpired, he had not been entered into this scheme at the time of the expiry of his 3-month secondment. Furthermore, it was also too late at this point to enter the clerical pension scheme. An employee needs to be 55 years or younger, which age the Employee had exceeded. The Employee was 52 years when first engaged in his clerical role.

 The Employee has made representations to the Employer on this issue through his Union official. The parties had some discussions with a view to resolving the matter, but an agreement was not reached. The Employer is not willing to enter the complainant into the clerical pension scheme from the date of the expiry of his secondment. The Employer did make an offer of a lump sum compensation amount, but this was rejected by the complainant.

 Over a period of time the Employee had several conversations with his District Manager regarding the onerous nature of travel from his home to work. This related to his previous position. Following these conversations, a secondment role emerged in the Customer Relations Department. The Employee applied for and obtained the position.  This was facilitated by the District Manager’s recommendation. The Employee was also facilitated in taking up the grade in so much as he did not have to go to Dublin to take up this role, he was allowed carry out his duties from a location nearer to his home. This role and facility were afforded to the Employee as he had requested a career structure.

The Employee continued in this secondment role and at various points he was requested to return to his previous role. His Trade Union made representations on his behalf that he remains in the Customer Service role. There was also a period of illness where the Employer continued to facilitate the Employee. Consequently, the Employee was in the role for a lot longer than was initially envisaged.

In 2015, following representation from the Trade Unions, the employer agreed to appoint a number of people who had been on long term secondments. In this context it was agreed that the Employee would be appointed. At this stage the employee was in excess of the 56-year maximum age for entry into the clerical pension scheme.

The employee then made the case that he should have been part of the clerical pension scheme, but his age made him ineligible.  There followed a process where the Employee, amongst others who had made claims, where genuine attempts to settle were made.  The Employee alone rejected any attempts to resolve and requested details as to what his entitlements were in the regular wages pension scheme and the hypothetical situation if he was a member of the clerical pension scheme. The requested information showed that even if it had been possible for the Employee to be admitted to the clerical scheme it would result in him having less benefit at pension age than he would receive from his present scheme. In effect it would mean that the employee would have had to make €34,000 in contributions to the clerical scheme and when you offset his contributions to his present scheme, he would owe arrears of €15550 to the clerical scheme.

The Employer submits that it would make no financial sense for the Employee to be admitted into the clerical scheme therefore he suffered no detriment nor financial loss as such the claim for compensation should be rejected.  

I was clear from the outset of this hearing that I could make no legitimate recommendation suggesting that the Employee would move from his present scheme into the clerical pension scheme. Primarily, there are rules set down by statutory instrument which cannot be broken by this forum. Both parties also agreed that the Employee would be financially better off staying in his current pension scheme. The Employer correctly pointed out that there was no quantifiable financial loss but after hearing the account of the Worker, I believe he did suffer a detriment. When the Worker was first seconded to a clerical position from the regular wages staff for a three-month period, he had an expectation that at the end of period some communication would have emanated from management to give him certainty about his future career path. Instead, he was left in situ. His trade union sought to invoke the grievance procedure to seek to regularise his position, but the Employer did not respond to the trade union’s letter. There is no doubt that the Employee was left in an ambiguous position for a number of years. Such an uncertain status does have its consequences. Promotional opportunities within the grade were not available to him and the lack of clarity about his pension, as it was in this case, created its own sense of relative insecurity. He was 52 years old when he took up the clerical position. He is now 56 years old – the cut-off entry age for the clerical pension scheme is 55 years. It was subsequently discovered in 2015 that the Employee had no reason to fret because he would have lost money if he was allowed to transfer between schemes, but that does not account for the unsatisfactory treatment to which  he was subjected. The Employer in other ways was quite reasonable in accommodating the Employee, for example arranging a transfer to another position so as to facilitate a shorter journey to work. However, I do believe the Employee was treated unfairly in being left in limbo for a considerable number of years. Having considered all the information put before me, I recommend that the Employer should pay the employee €1000 for subjecting him to unfair treatment. I recommend that the Employee would accept this sum as a final settlement of his dispute.  

Having considered all the information put before me, I recommend that the Employer should pay the employee €1000 for subjecting him to unfair treatment. I recommend that the Employee would accept this sum as a final settlement of his dispute. 

Section 13 of the Industrial Relations Act 1969.