Complainant

Respondent

Anonymised Parties

A Retired Nurse

A publicly funded healthcare body.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00048747

22/02/2022

The Complainant relies on her submission filed and summaries her position as follows:

The pre- retirement initiative was a retention measure introduced in 1997 to retain senior nurses. The scheme provides that a nurse, up to a maximum of the last five years, can work at job sharing hours and they would get the full pension, for those last five years, or for the time they worked if less than the five years.  During those years the worker was paid for the hours she worked only. Back in 1997 when it was introduced the original scheme was for nurses aged 55 years on a D stamp

The worker commenced working for the respondent prior to 6th April 1995 and was therefore on a D stamp for social welfare purposes and remained so until she retired. The scheme the subject matter of the within case was introduced in 1997. The worker had a retirement age of 60 and therefore satisfied the eligibility criteria for inclusion in the 1997 pre-retirement job sharing initiative for nurses between the ages of 55 and 60 years.. The initiative was temporarily suspended during the economic crisis but was reinstated by circular 014/ 207 dated 20th of June 2017. When this circular issued on 20th of June 2017, to effect the reinstatement of the former pre-retirement initiative from 1997, the nursing and midwifery workforce was then overwhelmingly comprised of nurses and midwives who had come to the respondent workforce since 6th April 1995 and therefore had a retirement age of 65 years of age. That cohort of employees where on a stamp A for social welfare purposes. Obviously, the reinstatement scheme had to be amended to take cognisance of this changed reality. Accordingly, the scheme had to be expanded to incorporate both nurses who wear on a stamp A who had a retirement age of 65 and those who were on a stamp D with a retirement age of 60. There were other eligibility criteria that are not relevant for the purposes of this complaint.

Clause 5.1 of the scheme states “nurses in permanent position aged 55 or over may make application to their own employer to work on the job. Sharing bases for a maximum of 5 years prior to retirement or such lesser period as may apply until they reach age 60 with the 5 years in question or the other lesser period to reckon as full-time service for superannuation purposes”.

The department seem to have interpreted “maximum of five years” has having to work the full five years.  They are also insisting that the retirement age is 65. That ignores those on the D stamp whose contractual age of retirement is 60. The worker agrees with the Respondent that she exited on the 2017 scheme but argues that the two schemes incorporated both workers.

Three levels of the publicly funded healthcare body have already granted the worker her pension entitlements in relation to the scheme. It wasn’t until it got to the Department of Health that it was refused.

The Respondent relies on its submission filed and summaries its position as follows:

This all comes down to the interpretation of the circular. The Department are clear, the scheme is based on five years duration. The maximum of five years clause is there for those who have contractual retirement age of 65 who might enter the scheme before the age of 60 so that they cannot work on the scheme for more than 5 years.  HR circular 014/2017 sets out the pilot pre-retirement initiative for nurses and midwives. The worker retired on the 2nd of January 2022.. After she retired, she invoked the HSC grievance procedure that grievance was heard by her HR manager on the 21st of January 2022. Following the hearing, the grievance was upheld however, it is now argued that the manager who found in favour of the complainant had no authority to enact the outcome. As a consequence of the finding the worker again made contact with the superannuation department in relation to the benefits under the provision of the scheme. Superannuation were not in a position to adjust her pension calculations on foot of the grievance outcome as they were bound by the provisions of the aforementioned circular. Representations were made on behalf of the complainant by the INMO directly to the Department of Health. The Department of Health examined the case and put forward and provided written clarification in relation to the service requirements of the pilot pre-retirement initiative for nurses.

The scheme permits nurses to work half their weekly contracted hours for a period of 5 years and then retire with pension benefits calculated as if they had worked full-time during that 5-years. The Respondent argues today that it is a requirement of the scheme that the nurse, in this instance, the complainant work a full 5 years in order to be eligible to benefit from the scheme. The scheme does not provide for a lesser period of time. The phrase maximum of 5 years is interpreted by the Respondent and the Department as just that, a maximum of 5 years, but that clause has been inserted specifically to cover those with a retirement age of 65. They can commence the scheme at any point over the age of 55 but can only remain in the scheme for a maximum 5 years. The term does not apply to those who have a retirement age of 60. As the Complainant did not work on the scheme for a full five years she is not entitled to the pension benefit under the scheme.

The ambiguity in this matter seems to revolve around the interpretation of the word “maximum” in the circular 14/2017. The complainant argues that the circular provides for a time period up to a maximum of five years to be eligible for the scheme. The Respondent argues that the Complainant must have worked for a period of five years to be eligible. Having listened carefully to both sides of the arguments I find, based on the wording of the circular, there is no ambiguity as to its meaning.

5.1 states:

“nurses in permanent position aged 55 or over may make application to their own employer to work on the job. Sharing bases for a maximum of 5 years prior to retirement or such lesser period as may apply until they reach age 60 with the 5 years in question or the other lesser period to reckon as full-time service for superannuation purposes”.

The word “maximum” must be reading in conjunction with the words “ such lesser period”. It is clear and unambiguous that those who have a retirement age of 60 must have reached the age the 55 before they can avail of the scheme, can only work a maximum five years on the scheme but can work for a lesser period should they wish to do so. It is only the period spent working on the scheme that is considered for the superannuation purposes. Nowhere in the circular does it specify that the employee “must work on the scheme for five years”. Based on the clear and unambiguous wording of section 5 of the circular I cannot find any basis for the Respondent’s argument in this matter. Therefore, I am making the following recommendation:

Recommendation:

The terms of the pre-retirement initiative between the period 15th October 2018  - 5th January 2022  are to be applied to the complainant and her pension entitlement and lump sum are to be adjusted accordingly.