Complainant

Respondent

Parties

Monika  Zawadzka

Technological University Dublin

Representatives

Niamh Ní Cheallaigh                                 IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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-00035657-001

11/04/2020

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road. This was a hybrid hearing. To facilitate the Complainant, her evidence was heard by way of remote attendance which is provided for pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote contact was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that the Complainant party was not prejudiced by having a part of this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where there is a serious and direct conflict in evidence between the parties to a complaint, that an oath or an affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence.

The Complainant was not represented and made her own case. At the outset, the Complainant was happy to make an Affirmation. I was provided with a comprehensive submission dated the 17th day of August 2021. I was provided with supplemental documentary evidence in support of the Complainant’s case. The evidence adduced by the complainant was challenged as appropriate by the by the Respondent’s Representative.

The Complainant alleges that she has been discriminated against on the ground that she is a different age to another and that this has negatively impacted her access to the occupational pension scheme.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute

The Respondent had representation at this hearing. In terms of witnesses, the Respondent Employee Relations Manager gave evidence on its behalf. The witness made an Affirmation.  The Respondent additionally provided me with a written submission dated 11th of August 2022.

The Respondent rejects that there has been any discrimination but admits to an anomaly which excluded the Complainant form the occupational pension scheme.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced in the course of this hearing. The Complainant has come before me claiming that she has been discriminated against on the ground of her age. In particular, she is alleging that her young age was a factor in denying her from accessing a workplace occupational scheme which was available to older employees.

The Complainant came to be employed as a Senior Research Assistant by the Respondent University in and around June of 2014 at which time she was given a fixed term Contract. A further fixed term Contract of employment was entered into towards the end of 2014, and which engaged the Complainant as a Senior Post Doctoral Researcher. Both of these employment Contracts specifically state that the Complainant has no entitlement to join the Occupational pension scheme (referred to as the institutes pension scheme) being operated by the Employer. The Complainant was instead directed to the Personal Retirement Savings Account (PRSA) scheme - which scheme was being run by a third-party provider appointed by the Employer.

An Occupational pension scheme has many benefits for an Employee not least of which is the likelihood that both the employee and the employer are making contributions towards the employee’s pension fund. It is a tax efficient way of saving for retirement and the pension pot grows quicker as the employee is not relying on just his/her own contributions. The Complainant in evidence said that the PRSA scheme is more risky.

No rational or reason is given (in the Contract of Employment) for excluding the Complainant from the Occupational Pension Scheme.

In the course of her employment the Complainant applied for and secured two Research grants. One came from the Irish Research Council and the other from the Science Foundation of Ireland. These Grants came with specific sums of money for the Gross annual salary applicable, as well as the cost of the Employer’s PRSI contributions, and a Pension contribution. As I understand it, the lump sums specified as Pension contributions are made available to the employer for the benefit of the Employee and for application towards the Employer pension contribution for the duration of the Grant period.  The Complainant is effectively on Secondment for the duration of these Research Grants.

As the Complainant was not in a pension scheme wherein her Employer was liable to make contributions (i.e. the occupational pension scheme), the monies made available were never drawn down by the Employer. I am advised the sums of monies reverted back to the funding parties - the Irish Research Council and the Science Foundation of Ireland. This was a loss to the Complainant’s Pension contributions of about €10,000.00.

The Complainant had understood that the monies would be set aside by her Employer, and it was only at the end of her employment that she became aware that the monies were gone altogether.

I have every sympathy for the Complainant. She has worked incredibly hard and demonstrated great ability in securing these lucrative grants in the first place. For her, the loss of this sum of money which formed part of the package she had deservedly won, is both inexplicable and unfair. However, for me, the question has to be whether the initial act of excluding the Complainant from the Occupational Pension Scheme is discriminatory?

In making out its case, the Respondent has pointed out that in this employment establishment (a part of the Institutes of technology and technological universities), employees engaged as  “researchers”  are never given access to the Occupational pension scheme. The Respondent recognises that this position is unacceptable and has in conjunction with the Department for further and Higher Education, Research Innovation and Science developed a robust business case in support of pensions access for researchers in the technological Universities and Institutes of Technology which said business case has already (as I understand it) been submitted to the Department of Public Expenditure and Reform.

It seems, therefore, that everybody agrees that the succession of inherited legislative and policy quirks that have allowed persons identified as “Researchers” to be left out of these occupational pension schemes, is unfair and unacceptable. It is hoped that DPER will agree.

However, in the meantime, I cannot find that the application of this rule or principle is discriminatory on the grounds of age. The Complainant cannot demonstrate that she has been treated less favourably than other persons in the same category of employment by reason of some age differential. Whilst she made the argument that Academic “Researchers” are more likely to be young on account of that being the first steppingstone on a career trajectory I have to accept that persons of any age - old and young - can be denied access to this pension scheme based on the employment status and title of “Researcher”.

Whilst I might agree with this Complainant that the rule is both arbitrary and unfair, I cannot find it is in any way discriminatory on the grounds of Age, The Complainant has therefore not made out a Prima Facie case from which an inference may be drawn.

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-00035657-001 - The Complainant was not discriminated against and made out no Prima facie case.