Worker

Employer

Anonymised Parties

Psychiatric Nurse

Healthcare Provider

Representatives

Psychiatric Nurses Association

Employee Relations Department

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-00043043-001

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 commenced employment as a temporary psychiatric staff nurse in an organisation which provides services for the Employer as an employee of the Employer organisation in February 1993.  The Worker applied for a permanent psychiatric staff nurse position in August 1993. The application form was forwarded to the applicant by the Employer and was stamped by the program manager of the Employer organisation.  The return address was the Employer’s headquarters.

Section 8 of the application form stated, "please state the venue in order of choice”. The application form did not contain any information in relation to any fundamental difference in the terms and conditions of employment between the venues.  The Worker selected the organisation in which she was working as a temporary psychiatric nurse in the employment of the Employer and in so doing had no reason to suspect that she was putting herself at a disadvantage in relation to her terms and conditions of employment.

The Worker received a letter from the Employer on 16th October 1993 advising her that she was successful at interview and was placed on a panel. On 3rd January 1994, the Worker started work as a permanent psychiatric nurse in the same post, same venue, doing the same job as she had been doing as a temporary psychiatric staff nurse employed by the Employer.

The Worker attended a pre-retirement course in September 2015 which was run by the Employer. Prior to her retirement, the Worker wrote to the CEO of the organisation in which she worked explaining that she was retiring without prejudice to her right to join in any action taken by her colleagues who were affected by a pension anomaly, as the matter was ongoing for many years.

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.

his 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