Worker

Employer

Anonymised Parties

Psychiatric Nurse

Healthcare provider

Representatives

Psychiatric Nurses Association

Employee Relations Department

Act

Dispute Reference No.

Date of Receipt

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

CA-00043042-001

12/03/2021

This dispute concerns a claim by the Worker that she has been incorrectly categorised as an employee of another organisation rather than the Employer organisation and that this has led to a diminution in her terms and conditions.  The Employer refutes the claim.

The Worker submits as follows:

The Worker is seeking to be classified as an employee of the Employer and to be encompassed by the terms and conditions of such an employee.

The Worker worked for an organisation which provides services to the Employer from 1984 until 2001. In 2001 she was offered an appointment as a Community Mental Health Nurse (CMHN) in one of the Employer’s clinics. This CMHN role was replacing one of the Employer’s CMHNs who was transferring to another clinic. There was no interview process for this role and it was a permanent community post. No contract was issued for this promotional post. There was no indication that the Worker would have different/lesser terms and conditions of employment than the staff member she was replacing or her fellow CMHNs.  The Worker remained in the same community post until she retired on 30th June 2021.

In her role as a Community Mental Health Nurse, the Worker provided a key worker service to the Employer’s clients through clinics and home visits.  She was involved in presentations to community groups on mental health promotion on behalf of the Employer. She participated in the Employer’s policy group and has developed policies for the Employer in relation to nursing in the community, e.g. administration of medication, working alone policies, etc.

The following applies to the Worker’s employment as a Community Mental Health Nurse:

·       The service is funded by the Employer

·       The service is governed by the Employer’s policies

·       The Worker’s base was one of the Employer’s premises

·       The Worker reported to one of the Employer’s managers

·       The Worker recorded her nursing entries in the Employer’s clinical files

·       The Worker’s ID badge, key and access fobs were provided by the Employer

·       The Worker used the Employer’s IT facilities

·       The care the Worker provided was solely to the Employer’s patients

·       Other than getting paid by the other organisation, the Worker had no relationship with that organisation

The Worker subscribed to the Voluntary Hospitals Superannuation Scheme (VHSS). The VHSS required she work a minimum of 40 years with minimum retirement age at 60 years. The local Government Superannuation scheme applies to the Employer’s employees. Psychiatric Nurses working in the Employer’s psychiatric services have more favourable superannuation benefits i.e. they can retire at 55 years of age with 30 years’ service, whereby every year after 20 counts as double. These entitlements arise from the provisions of the Mental Treatment Act 1945 and apply to psychiatric nurses employed by the Employer prior to 1st April 2004. It is the Worker’s contention that her pension entitlements should be provided by the Local Government Superannuation Scheme.

The Employer submits as follows:

The Employer does not accept the claim that the Worker was an employee of the Employer organisation. The Employer contends that the Worker was employed by another organisation which provides services on behalf of the Employer and was paid by that organisation.

The Employer contends that the essence of this complaint is that the Worker did not receive the same pension entitlement as the Employer’s employees.

The Union have met with Employer on a number of occasions in relation to the Worker and a number of other nurses employed within the same organisation. The Employer has always been clear that it does not believe that it is the employer in this case. This has been communicated to the Union.

The Employer submits that some psychiatric nurses were entitled to fast accrual terms which entitles them to doubling of years' service for qualifying service over twenty years. This means that in some cases psychiatric nurses can qualify to retire at the age of 55. The terms and conditions of the scheme are contained in the Health and Mental Treatment Act 1966. Qualifying organisations have to be registered in the section 65 register under that Act.  All recipients of these enhanced retirement terms must be certified by the Directors of HR for their locations. The organisation which employed the Worker is not on the section 65 register of approved centres.

The Employer contends that even if the Worker was transferred to the Employer, it is not within the power of any manager in the Employer organisation to grant her access to the fast accrual pension scheme. This scheme is governed by strict requirements which are underpinned by legislation.

It is the Employer’s position that the herein claim is not an individual claim but a claim on behalf of a number of psychiatric nurses for admission to the fast accrual pension scheme under section 65 of the 1966 Act. It is the Employer’s position that this issue cannot be dealt with as an individual issue and must be dealt with as a collective issue.

The Employer submits that the issue has come before the Labour Court before.  In that instance, the Court recommended that the Union make a separate submission to the Pensions Commission on this matter. To the knowledge of the Employer, such a submission was never made. It is the view of the Employer that given the collective nature of this claim, the issue should have been referred to either the Labour Court or to the Pensions Ombudsman.  The Employer submits that, given the previous decision of the Labour Court, the most appropriate pathway for this collective issue would appear to be a referral to the Pension's Ombudsman.

This dispute has been framed by the Union as a claim by the Worker to be classified as an employee of the Employer organisation and to be encompassed by the terms and conditions pertaining to the Employer’s employees. However, as the Worker is retired, the only possible impact concession of this claim might have would be in relation to the Worker’s pension entitlement.  I am of the view, therefore, that while this is ostensibly a claim about the Worker’s employment status, it is in reality a claim about the Worker’s pension entitlement.

Section 13(3) (b) of the Industrial Relations Act 1969 provides a statutory restriction on Adjudication Officers from investigating a trade dispute if the Labour Court has made a recommendation in relation to the dispute.  I note that the Labour Court has previously made a recommendation in relation to the Worker’s pension entitlement.  Accordingly, I find that I do not have the jurisdiction to deal with this matter.

I do not recommend in favour of the Worker.

Pension entitlement – Labour Court decision – no jurisdiction