adj-00034490

Worker

Employer

Anonymised Parties

A Retired Mechanic

A Public Body

Representatives

 SIPTU

 Human Resource Manager

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-00045457-001

29/07/2021

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

CA-00045457-002

29/07/2021

On 29 July 2021, the Union on behalf of a then serving Mechanic lodged two identically worded Disputes before the WRC.

The Worker requested an investigation into the failure of the public body to apply pension to a 21-year tenure in a promotional role

The Employer, in this case operates a public service and has rejected the claim, stating that they had engaged with the worker throughout the period prior to his retirement on December 27, 2021, in explaining the rules of the pension scheme.

Both Parties furnished comprehensive written submissions.

The Union outlined that the Worker acted in a higher position for a 21-year period of 2000-2021. Payment manifested in a 7-month payment per annum. the Union contended that this payment ought to have been incorporated in the Workers’ pension calculations.

They relied on the “the best 3 years consecutive in the 10 years previous to retirement”

The Union identified their preferred resolution as an incorporation of the period spent in acting capacity into superannuation.

The Union included a letter dated 12 March 2021 from the Employer. This letter ruled out any incorporation when it stated:

“In order to qualify to have acting up payments reckon superannuation purposes, an officer or an employee will have to be in receipt of the payments on cessor of office or employment and to have been in receipt of them on that date for a continuous period of at least one year “

It determined that the period of acting was not continuous.

The Employer outlined the Workers service record through apprenticeship in 1977 to the permanent mechanic role in November 1981. The Worker was obliged to join the Local Government superannuation scheme in 1981.

The Employer has rejected the claim.

The Employer placed a context and background to the service record of “Acting up “engaged in by the Worker. this constituted an on-site mechanical repair cover and supervision of surface operations which typically spanned April to September /October annually.

The Employer submitted that the provisions of the Superannuation scheme were non-negotiable.

Circular 17/1997 on Reckon ability of Acting Up payments for superannuation purposes was exhibited.

The Worker had a shortfall in service and could not satisfy “continuous period of at least one year “rule in section 2.2(b) of the circular.

The Employer explained that as this position was clarified to the Worker in March 2021, he was offered an opportunity to appeal the decision not to incorporate the acting up service to pension

The Worker has not exercised the opportunity to appeal within the terms of the pension scheme by means of Internal Disputes Mechanism (IDR)

 The Employer shared all relevant information with the worker to assist him in preparing for appeal. This information was exhibited in the submission.

The Employer acknowledged that the Worker had carried a specific named allowance as an emolument into retirement., but they argued that there was no scope to broaden that to the “acting up “as it just did not match the rules of the scheme.

The Employer placed a lot of emphasis at hearing on the omission to progress under the IDR appeal.

They submitted that the claim must fall.

In conducting my investigation, I have considered all relevant oral and written submissions presented to me by the parties.

I have listened carefully to both parties at hearing. This is a very regrettable scenario, where an employee retires after 43.86 years’ service and the matter of a fragmented relationship between an “acting up period “and superannuation endures in an unresolved manner.

It is of note that the Worker told the hearing that he is the first to retire from his group and no precedent exists for reference of application. There is no live Union Agreement.

Both parties accept that the worker succeeded in incorporating a separate static allowance within the “3-year rule “

It is clear to me that the Employer equipped the Worker with a portfolio to assist in an appeal under IDR. This is an important first step in seeking to resolve a pension issue. I was not satisfied that the Worker gave this option careful consideration.

I can understand a worker wishing to gain access to speedy justice at WRC. However, it is important to reflect on what the best strategy is in terms of a Superannuation scheme. 

I have taken the opportunity to explore the Circulars exhibited by the Employer and my attention was drawn in particular to circular 17/97, which outlined a transition from where it seemed at 1.2 to incorporate all acting up payments over the last three years of service to the new arrangements at 2.2 relied on by the Employer (250 service days a)

Exceptions were allowed that absence due to sick leave would not break the chain. However, no balanced accommodation for payment of acting up linked to a seasonal service exigency was set down.

I noted that transitional arrangements pertained up to cessation of office by 31 December 2000. However, the retirement in this case is December 2021. 

I did give some consideration to whether this was a claim which may be viewed as pertaining to a body of workers and thus naturally precluded by Section 13(2) of the Act. However, I am satisfied that this is an individual grievance regarding pension rights. 

In all the circumstances of this case, I find that the Worker would be best served in progressing the pro offered appeal under IDR within the 6-year time allowed. There are a number of matters on the recognition of the 250 service days that require the expert eye of the pension administrators.

I accept that the Worker willingly engaged annually in the acting up without being aware that it would not reflect in his eventual pension as a calculated emolument until February 2020. 

I have no desire to prolong this dispute for either party. I have investigated the dispute and while I find merit in the dispute, my recommendation is directed at a course of action for another journey. 

I have not found grounds to award the insertion of an emolument into a live pension payment. I can however direct the parties to work together in facilitating the earliest possible access to an IDR process for the Worker. This is a specialised service which will investigate this claim further within the provisions of the Financial Services and Pensions Ombudsman Act, 2017.

Section 4 in Circular 16/2020 permits the Union to represent the worker at this forum.

Promotional role not reflected in pension