Complainant

Respondent

Parties

Pauric  Smyth

An Post Postal Services

Representatives

  Pauric Smyth

 John McCormack An Post

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00052292-001

17/08/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

CA-00052292-002

17/08/2022

These cases are concerned with two matters. First is the relocation of Mr. Smyth from his work base at one post office to another which he contends took place without his agreement and without proper notification from the employer. He does not have a written statement of terms of employment for the post which he currently occupies. The second complaint relates to the terms of pension scheme which applies to Mr. Smyth and around which he expressed considerable dissatisfaction in submitting a complaint of discrimination on grounds of age.

The parties provided documents in advance of the hearing and agreed at the hearing that they were satisfied to conduct the hearing based on their respective accounts and recollections as set out in those submissions and as explored further at the hearing.

Terms of Employment Information Act 1994 as amended

Mr Smyth (the Complainant) is employed with An Post since January 1996, initially as a temporary employee.

In 1998 he became a permanent auxiliary and was issued with a contract for that position.

In 2006 he was successful at a hearing by a Rights Commissioner who said he had been poorly treated and that he was to receive a permanent contract as a Postal Operative. He never received a written statement of terms for that position.

His difficulties which lead to this complaint occurred when, after 26 years working at the same location, he was transferred to another location in August 2022 without his agreement. An Post did not negotiate or agree changes in his terms of employment arising from that decision to change his location. While An Post claimed they had an agreement with the Union representing him and his fellow workers, the last information he received from the Union was that there was no agreement on the terms of the relocation. He had attempted to pursue a grievance in relation to the relocation, but he was ignored.

Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

Mr Smyth explained that An Post operated a two-tier pension scheme for people recruited before and after 1994. Anyone recruited before 1994 had the full value of their pension paid by the Company. Those who like him, were recruited after 1994, received their payments by way of a combination of the State Pension and a top up by An Post. He considered this most unfair. As a result of the revised formula which applied in his case, he would receive around €67 per annum paid by An Post out of the pension fund. Essentially that the State and not the Company will be funding most of his pension. At the hearing he did not really make the case for discrimination on grounds of age, leaving the decision as to whether he has a case to the undersigned. He did add that it is a pity he did not receive a contract of employment so that the situation would have been clear from the outset.

Terms of Employment Information Act 1994, as amended.

A search of Mr Smyths file had not revealed any statement of terms of employment for the post he has held for many years, that of postal operative based at the Ballybay Delivery Sorting Office. It is the Company’s position that an agreement was reached with Mr Smyths Union on 04 08 2022 that the Ballybay Office would be consolidated into the Monaghan DSU. Furthermore, it was contended that a compensation package was also agreed with the Union at that time. This merger was part of an ongoing consolidation of offices within the operation. In July 2022.the Complainant did write a letter complaining about the lack of consultation but that consultation took place subsequently and agreement was reached on the terms. If the Complainant has a difficulty, it is respectfully suggested that is with his Union and not An Post but that the Company also understood from the Union that Mr Smyth and others were informed of the outcome of the consultation process and the agreed terms. On 17 August 2022, the relevant manager also informed the employees affected by the re-location from Ballybay of the intention to proceed with the relocation, effective 22nd August 2022.

Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

The Respondents position is that this complaint is based on a misunderstanding. There were changes in the pension structure in 1994 and again in 1996. Mr Smyth does not make contributions to a pension fund. Accepting that, unlike those who joined the pension pre-1994, Mr Smyth does not receive his pension entirely from An Post, the nett effect is the same in terms of the amount of pension he receives. In other words, whether the pension is a combination of payments by An Post and the State or solely from An Post, there is no difference in the payable pension in terms of total benefits. Over the years there have been regular updates to all employees in relation to pensions, pension schemes and changes. Responding to another point originally made by Mr Smyth, he had the opportunity to make additional contributions to the pension fund, this was not denied to him. There was no less favourable treatment of him on any of the nine grounds set out in the relevant legislation. Finally, An Post contends that they have no legal obligation to promote the purchase of added contributions and to fail to do so is not discriminatory in terms of Part V11 of the Pensions Act as amended.

Complaint- Terms of Employment Information Act 1994, as amended.

In many respects the issue regarding the relocation of the Ballybay office to Monaghan is an industrial relations issue being played out as a matter of employment rights. And undoubtedly, the Company is correct when they say that in part at least, the issue is one between the Complainant and his trade union. An Post is a highly unionised workplace and it is well known that all collective matters are negotiated with trade union/s through representation of their members. I do not intend to be drawn into who said what and when and what understanding or consultation took place internally within the union membership. I will say that I do not have sight of any written agreement setting out terms which did affect Mr Smyths terms of employment insofar as any statement of terms must include a reference to the location of the employment, how that location may change, any collective agreements affecting terms of employment and any arrangements for the payment of overtime. These observations relate to the terms of any statement which apply under the application of Section 3-(1) of the Act as set out below.And the plain fact of the matter is that MrSmyth did not receive a statement in writing relating to his current post which would comply with the obligations under Section 3-(1) of the Act. I cannot ignore this fact. Furthermore, I would remind the Company that evolving legislation in this area will require far more updating of the written terms than tended to apply heretofore and that relying on understandings reached with Trade Unions which impact on the written terms may not be sufficient to dispose of the obligation to revise and update the written terms through notification to employees.

Accepting that Mr Smyth did receive ongoing updates regarding the Company pension scheme he should have received a statement of his terms of employment which set out his location, how that location could be changed, if at all and the collective agreements which governed the terms of his employment. For this reason, I am awarding compensation to Mr Smyth as provided for in Section 7 of the Act and also ordering that he receive a written statement of his terms of employment fully compliant with the terms of Section 3-(1) of the Act as it applies on the date set out in this Decision.

TERMS OF EMPLOYMENT (INFORMATION) ACT 1994

Written statement of terms of employment.

3.— (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee’s contract of employment,

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

(ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;

(d) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week.

(1B) Where a statement under subsection (1A) contains an error or omission, the statement shall be regarded as complying with the provisions of that subsection if it is shown that the error or omission was made by way of a clerical mistake or was otherwise made accidentally and in good faith.

(2) Each statement referred to in subsection (1) and (1A) shall be given to an employee notwithstanding that the employee’s employment ends before the end of the period within which the statement is required to be given.

(3) The particulars specified in paragraph (d) of subsection (1A) or paragraphs (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee’s employment or which are reasonably accessible to the employee in some other way.

(4) A statement furnished by an employer under subsection (1) or (1A) shall be signed and dated by or on behalf of the employer.

(5) A copy of a statement furnished under this section shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

This complaint is no more than a belief or opinion that the employer should be paying a more substantial amount towards the final pension calculation than they now are under the combined benefits scheme operable since 1994. Mr Smyth doesn’t appear to appreciate that An Post is paying their element of his pension entirely-as he makes no contribution and, since 1994 have paid employers PRSI towards his State pension, something they would not have paid pre 1994 when public servants recruited before that date were on what was then described as the modified of Class D stamp. There is a not a scintilla of validity in the complaint of discrimination on any ground or under the terms of the Pensions Act as revised which if it were explored in depth may not apply to this complaint at all. As it stands, Mr Smyth has failed to make out any sustainable case on this complaint which merits further consideration in this Decision.

CA-000522-001 Terms of Employment Information Act,1994

Insofar as the Respondent failed to provide the Complainant with a written statement of his terms of employment in resect of his current post as provided for in Section 3-(1) A of the Act, the complaint brought by Pauric Smyth against An Post is well founded. The Respondent is to pay Pauric Smyth the sum of €2000 compensation in respect of the breach of the Act and An Post is to provide Pauric Smyth with a statement compliant with the operable terms of the Terms of Employment Information Act 1994 as of 1 May 2023 to be provided to him in the required form no later than May 8th, 2023.

CA-00052292-002 Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

This complaint brought by Pauric Smyth against An Post is not well founded.

Terms of Employment-relocation without agreement/Discrimination-Terms of Pension Scheme/Age