Worker

Employer

Anonymised Parties

A Speech and Language Worker

An Employer

Representatives

  Fórsa Trade Union

Aisling McDevitt IBEC

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00000513

31/07/2022

The worker submits that the employer’s defined benefit pension scheme was not made available to her and she should be compensated

The worker is currently employed as Speech & Language Therapy Manager having commenced employment as a Childcare Attendant in 1979. Following an agreed leave of absence to return to education, she began working as a Speech & Language Therapist in 1986. In 1986, the worker enquired about joining the associations Defined Benefit pension scheme and was advised that she would have to wait until she was one year with the employer. On asking the same question in 1987, she was verbally informed by office manager, Mr A that the scheme had closed and that a new scheme would be opening which was a Defined Contribution scheme but this did not open until 1996, which the worker joined. The worker submitted also following the hearing that the worker has continued to be employed by the employer and has not ceased her employment for any reason, and therefore a preliminary issue regarding whether the worker is ceased to be employed is not applicable. The worker said in response to the claim by the employer that this is a collective issue was disputed and that the dispute should proceed.

In 2018 the worker was verbally informed by a retired member of staff that the scheme had not closed until 1989 and that another member of staff had joined after the worker’s enquiries. Following an FOI request, the worker received redacted minutes from a board meeting from September 25th 1989, which outlined a proposal to close the pension scheme to all future parties. The worker sought information regarding staff members being admitted to the scheme post 1986, however, this information was not provided.

2.1 Section 4 (b) of the rules of the Defined Benefit pension scheme outline that:

“On or before the date of admission of a member, the employer shall notify every eligible member in writing of: a) The terms of admission b) The basis on which his pension will be calculated and the age from which it will become payable. c) The rate, at which the member will be required to contribute to the scheme. d) Of the rights and benefits available on withdrawal or death and on early or late retirement.”

At no stage had the worker been informed in writing by the employer, of terms of admission to the scheme and the worker was incorrectly told by management that the scheme had closed. The worker took the information given in good faith and did not raise an issue until she received the minutes of the 1989 board meeting in 2018. From 2018 to 2022, the worker exhausted local procedures in an attempt to resolve the dispute.

The terms of the Defined Benefit pension scheme were more beneficial to staff than the 1996 Defined Contribution pensions scheme.  The employer failed in their duty to provide the worker with the information outlined in section 4 (b) of the Defined Benefit pension scheme. When the worker sought out details of the pensions scheme, they were provided with incorrect information by management. The worker has suffered a financial loss as a consequence of not being afforded the benefits of the Defined Benefit pension. The worker requests she be awarded compensation based on the financial loss suffered.

The employer submitted two preliminary issues namely that this is a collective issue, and the worker is not unique to this issue.  It was further submitted as a preliminary issue that the worker is working  on a fixed term contract post retirement and therefore, is precluded form submitting her claim under 26a of the Act. 

The worker is a speech and language therapy manager and her original contract of employment did not have an occupational pension scheme and in 1996 when a defined contribution scheme was implemented the worker joined this scheme.  In 1980 a defined benefit scheme with specific rules attached was in place and this scheme closed in 1989 and there are currently only 12 employees in this scheme out of 1,000 workers and all are retired.  On 25/09/1989 a motion was passed to close the defined benefit scheme to future members and no members were admitted between 1986 and the closure of the scheme in 1989.  The worker returned to the workplace after her college studies within a short time frame of the defined benefit scheme closing.  The defined benefit scheme required an application from prospective members and the worker submits that she made an oral application and was advised she would not be eligible for a year and did not submit any written application.  Even if the worker made an application it was subject to be considered by the trustees but no application was ever received by the worker.  The issue of the scheme was not raised until January 2018 and the worker was written to on 16/05/2019 and advised that she had never submitted a written application for consideration.  A meeting on 10/06/2022 took place with the worker and her representative and financial compensation was sought.  The worker furthermore did not pursue the necessary steps. 

Over 30 years have passed since the defined benefit scheme closed.  The worker was treated the same as all other employees. The worker suffered no loss as she was not contractually entitled to become a member of the defined benefit scheme.  The current defined contribution scheme in place is generous and is in line with pensions throughout the sector.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

I note that the worker outlined the unfairness of the manner in which she had been treated by the failure of the employer to provide her with an opportunity to avail of a defined benefit scheme but yet appeared to have offered this defined benefit scheme to another employee.  I note that the employer submits that this is a collective issue, that the worker is also precluded from submitting her claim as she works on a contract post-retirement, that there has been a significant passage of time since a defined benefit was offered to employees and that the worker avails of a defined contribution scheme. 

This issue does not just impact this worker alone and as it would appear, therefore that this matter affects a group or category of workers I do not have jurisdiction to make a recommendation on this dispute.

This issue does not just impact this worker alone and as it would appear, therefore that this matter affects a group or category of workers I do not have jurisdiction to make a recommendation on this dispute.

Defined benefit pension scheme, collective group of workers, industrial relations act