Complainant

Respondent

Anonymised Parties

 A Worker

 A County Council 

Representatives

Kealin Ireland Ireland Human Resources

Keith Irvine LGMA

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00032455-001

21/11/2019

The Complainant is seeking adjudication by the Workplace Relations Commission  under Section 6 of the Payment of Wages Act, 1991 and has submitted that following his retirement in 2011 he has not been paid the correct pension (CA-00032455-001)

The Complainant commenced employment as a depot assistant with the Respondent on the 20th January 1997 and retired on the 26th August 2011.

The Complainant submitted that in addition to his daytime duties he carried out continuous overtime 6 days a week from 1997 – 2008. From 1997 the Complainants overtime included working every Saturday for eight hours from 1997. From 2004 until 2008 the Complainant’s overtime was on a specific program for the Respondent and was for every evening five days a week from 5pm onwards. Along with his clerical and administrative duties, the Complainants role  was wide ranging and comprehensive and included many different physical, manual and supportive roles. The Complainant effectively worked sixty hours and week and twenty of those were after 5pm and at weekends.

The Complainant submitted that the Respondent might have intended his overtime and that of other workers to be temporary, fluctuating and ad hoc but this was not the case. His overtime was an  integral part of his employment. Although the Respondent maintains that the Complainant could have chosen not to work the overtime at any time as it was  deemed to be voluntary. However, the Complainant submitted that this overtime was on a compulsory basis in order to ensure the efficient running of the program and in that respect relies on an email dated the 23rd February 2017 from a retired clerk of the works for the Respondent confirming same.

The Complainant submitted that for budgetary reasons overtime was cut back from 2008 and entirely in 2009 and the Complainant was paid compensation for the loss of reckonable overtime. The Complainant retired in 2011 and upon receiving his first pension payment, contacted the Human Resources department of the Respondent and informed them that his overtime ought to be included in his pension but this was declined. Ultimately, the Complainant appealed this decision to the Pensions Ombudsman requesting a mediated solution.

Ultimately, the Respondent responded to the Ombudsman indicating that the overtime was ad hoc, fluctuating and temporary and therefore could not meet the criteria for reckonability. Following this response and further engagement through a dispute resolution manager the Ombudsman responded, inter alia, that they cannot demand a change in the rules of a pension scheme and cannot tell a pension provider how to apply a discretionary power.

The Complainant submitted in relation to his overtime he was relied upon to do it, he was asked to do it, he believed it to be compulsory and he was never told that he could stop, take a break from it or change the manner or frequency in which it was carried out. The Complainant believed his overtime was an integral part of his employment and was steady, unchanging and was relied upon by the Respondent for their efficient functioning.

The Complainant submitted that colleagues of the Complainant, who were employed in the same program, successfully appealed their pension entitlements. In those particular cases the Respondent re-evaluated their pensions and determined said colleagues overtime was reckonable.

The Complainant submitted that the Respondent relied upon the local government superannuation consolidation scheme along with the Circular letter s12/91  which determined the criteria for pensionable overtime. However, the Complainant relies upon the Pension Ombudsman’s analysis of a 2006 case wherein a Complainant who was Employed as a Plant Operator in the Tarring Section of a local authority and who retired in 2003. In this particular case, the local authority refused to include overtime in the  calculation  of  the  man's  final  pensionable  remuneration.  The  complainant  considered  this overtime was rostered, regular and a requirement of his job and was, therefore, reckonable.

In that particular case the  local authority concerned in that case made the same arguments as the Respondent in this particular matter under consideration.  The local authority relied upon the relevant extracts  from the  superannuation legislation  and said that the complainant did not meet all the criteria and that this overtime was optional.

The Ombudsman, however, found that the complainant's overtime was of a regular and recurring nature and that at least part of it complied with the 'reckonable' criteria, in that it  was work of a kind that could  only be performed outside of, and in addition to, the normal hours of work of the grade to  which  the  officer or employee belonged.

In particular the  Ombudsman stated “The Department of the Environment, Heritage and Local Government had precedent cases where they concluded that, where overtime was deemed to be necessary and had, in effect, become an accepted work practice and part and parcel of a person's conditions of employment, the benefit of the doubt, as to  whether the overtime  was optional, was given  to the appellant”.

The Complainant submitted that the Respondent contravened their own overtime guidelines. If they wanted the Complainant’s overtime to be voluntary, then  they  could  have  told him  at the outset that he could give it  up at any stage. The Complainant was never informed of same  and never gave him the opportunity  to consider what he wanted to do. If the Respondent had wanted the Complainant’s overtime to be temporary, then  they ought to have monitored and managed the situation appropriately. However, they allowed the Complainant to develop the custom and practice of working overtime for eleven years without any of this overtime being questioned or modified.

This Complaint was submitted to the Workplace Relations Commission on the 21st November 2019.

The Respondent accepts the timeline in relation to the Complainant’s employment.

The Respondent submitted that the Complainant was employed as a Depot Assistant which involved some administration duties and his pension was calculated on that basis.

Under the Local Government Superannuation Scheme, the criteria for pensionable overtime include: overtime must be part of the terms and condition of employment, overtime is mandatory, overtime is part and parcel of employment, overtime must be regular,

overtime must be rostered, overtime cannot be done during normal working hours, overtime levels cannot fluctuate, overtime cannot be as a result of staff shortages, overtime cannot be as a result of work volume and  overtime cannot be done by a number of staff on a shared responsibility basis

The Respondent submitted that in accordance with the relevant scheme and circulars  that for overtime to be reckonable it must meet the criteria of being regular, rostered and recurring and it cannot be meet the aforementioned criteria if it is ad hoc, fluctuating and temporary in nature.

The Respondent submitted that the Complainant was not obliged to work this overtime and it was therefore deemed voluntary in nature.  Furthermore, the Complainant submitted that the overtime worked was not a requirement stipulated in the terms and conditions of the Complainant’s employment and was therefore not compulsory.

 The Respondent received correspondence from the Complainant’s representative on the 4th April 2017 requesting an appeal as part of the internal dispute resolution. This appeal was denied for the various aforementioned reasons. The Complainant then appealed this deision to the Pension Ombudsman’s office in July 2017.

The Respondent submitted that the Senior Clerk of Works, who was responsible for the timesheets and wage returns, advised that all overtime was optional, never mandatory and was not part of the Complainant’s contract of employment. Furthermore, this contract of employment was as a Depot Assistant which involved some administration works and his pension calculations were calculated on that basis although the Complainant stated his role  encompassed other duties.

In the circumstances of this case, the Respondent submitted that the overtime worked by the Complainant was not reckonable for pension purposes.

I have carefully listened to the evidence tendered and submissions made in the course of this hearing by both parties.

In the circumstances of this case, the issue for determination is whether the overtime worked by the Complainant is reckonable  for pension purposes.

The Respondent adjudicates on pension queries on an individual basis in line with the Circular letter (12/91) dated the 11th December 1991 from the Department of the Environment. This circular states, inter alia, that “overtime payments are not reckonable under most public sector superannuation schemes ..it follows from the statutory provisions that overtime payments may only reckon for superannuation purposes in exceptional circumstances and where specified conditions are fulfilled.”

In Limerick City & County Council-v- Worker, LCR21997, the Labour Court held:

“The matter before the Court is an appeal by a Claimant against an Adjudication Officer’s Recommendation, which found against his claim that the Council had failed to include an element of overtime in his pension entitlements, contrary to Circular 12/91.The Complainant commenced employment with the Council as a General Operative working in the Parks Department on 16thMarch 1994. He retired from employment on 15thMay 2017. He referred his claim to the Workplace Relations Commission on 3rdOctober 2017.The Union on behalf of the Claimant submitted to the Court that the overtime worked by the Claimant was regular and rostered and fulfilled the criteria for its inclusion in his pension entitlements as set out in Circular 12/91. It stated that he was rostered to work on Saturday one week and on Sundays on alternative weeks.The Council accepted that the Claimant was rostered to carry out the overtime and that it was regular. It also accepted that he had been carrying out these duties since 1994. However, it submitted that as the overtime in question was not compulsory it did not meet the criteria. Furthermore, it submitted that the overtime duties he carried out were Park Ranger duties and accordingly did not fulfill part of his normal day to day duties, as required by the Circular. The Council produced records for the Court of the overtime worked by the Claimant for the period when such records were available, i.e., from August 2010 to December 2016. The Council stated that this overtime arose due to staff shortages.Having examined the records, the Court notes that the pattern of overtime worked was consistent, regular and as submitted by the Union, it was worked on a rostered weekend basis. Circular 12/91 provides that overtime payments may only reckon for superannuation purposes in exceptional circumstances and where specific conditions are fulfilled. The Court is satisfied that the overtime worked by the Claimant on a regular and rostered basis since 1994, carrying out duties in the Park Department, filling in for a vacant position, comes within the definition of exceptional circumstances and meets the criteria set down in Circular 12/91. Therefore, the Court concedes the claim and recommends that the overtime payments in question should be reckonable for superannuation purposes in respect of the named Claimant involved in this claim.”

In the particular circumstances of this case, the Complainant worked overtime from 1997 to 2008 six days a week  in addition to his daytime duties. The Complainant’s contract of employment was as a Depot Assistant and his duties mainly consisted of administration work. However,  I do accept, on the balance of probabilities, that over his eleven year period of employment the Complainant carried out a wide range of tasks,  including clerical administrative work, physical and manual work, removal of dangerous walls and extensions, working on rooves, filling skips, cleaning the Depot, driving duties and working in the Stores area. In the course of this hearing, it is noted that the Respondent acknowledged that the Complainant did carry out a wide range of duties along with his administration work.  

I further note the aforementioned contents of the email from the Retired Clerk of the Works for the Respondent dated the 23rd February 2017 which states, inter alia, that “the Complainant worked on a refurbishment program for the Respondent from 2004 to 2007.. The Refurbishment crew every day after 5pm had to check all the houses that were been worked on in the refurbishment program were safe and tidy.. all of the staff that that was on the Refurbishment worked compulsory overtime for the smooth and safe running of this program.”

In the particular circumstances of this case, I find  that the pattern of overtime worked was consistent, regular, rostered and compulsory. I find that the overtime worked by the Complainant was part and parcel of his employment and could only be done outside normal working hours. Furthermore, I am satisfied that the overtime worked by the Complainant comes within the definition of exceptional circumstances and meets the criteria set down in Circular 12/91.

The Complainant referred this complaint to the Workplace Relations Commission on 21st  November, 2019. By application of the time limits provided for in Section 41(6) of the Workplace Relations Act 2015, the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was referred to the WRC i.e. from 22nd  May, 2019 to 21st  November, 2019.

In this instance there is a complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where it has been found that the  complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the employer can be directed to  pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.

Accordingly, I find that overtime payments, for the six month period ending on the 21st November 2019, should be reckonable for superannuation purposes in respect of this Complaint and by accepting the figures presented by the Complainant in the course of this hearing the sum to be paid is €9,744.00.

I find that the Complaint (CA-00032455-001) made pursuant to Section 6 of the Payment of Wages  Act, 1991 succeeds and find that the Respondent pay to the Complainant the sum of €9,744.00.

Superannuation