Worker

Employer

Anonymised Parties

A former Worker

A Public Service Organisation

Representatives

Mr Derek Ryan BL

HR Officer

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 - 00000739

07/10/2022

The issue concerns an alleged shortfall in the Pension of the Worker – according to the Employer Organisation’s rules, periods on Suspension, prior to 2017 (when Regulations changed) are non-reckonable for Superannuation. The Worker was on Suspension from 2012. Her final Pension was reduced as the period 2012 to 2017 was deemed to be “non reckonable” for Superannuation.

The Employment began on the 11th February 1993 and ended on the 10th October 2021.

The rate of pay was the published scale for the Organisation.

The Worker gave an oral testimony supported by a Written Submission. Her Spokesperson was Mr Derek Ryan BL.

On Suspension from work, the period in question (2012 to 2017) was not reckonable for Superannuation purposes. This was following the Government rules of SI 63 of 1925. Pay was reduced to 75%.

Following interactions between Representatives and Management this was changed as part of a wider Pensions package in 2017 to allow superannuation to be reckoned while on Suspension. Unfortunately, the question of past suspensions was not addressed.

She was suspended from work in November 2012 and was still on Suspension in May 2017 – the effective date of the change in Pension regulation.

During her early period of Suspension (2012 to 2017) she was unaware of the Pension “Penalty”, and it came as shock to her when she opted to retire early in 2021. No Representative of Management had ever explained this situation to her. The question of making a Voluntary Contribution was not explained.

It was her belief that the Organisation had it within its power to address this exceptional and unusual Pension Shortfall and failed to do so. At the very least she could have been informed by Management or the Welfare Service of the need to make additional Voluntary Contributions in this period to alleviate any future shortfalls.

She was seeking to have this shortfall addressed.

Pensions and Superannuation policy in the Organisation concerned are governed by Statutory Instrument and Legislation.

The Non reckonable Status of Suspensions until 2017 was governed by SI 63 of 1925 which made Suspensions non reckonable for Superannuation.

The Organisation had no choice but to follow this policy set out in the Statutory Instrument.

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

It was clear from the Oral testimony that the relationship between the Worker and Management during the Suspension period had been very troubled with much recourse to internal and external procedures, the Courts and other Offices of State.

The Staff Representative Bodies, while not present or represented at the Oral WRC Hearing, appeared to have been somewhat disengaged, for reasons that were not immediately clear from the case of the Worker here.

The length of the Suspension (almost 10 years) was exceptional in any employment context even if some of the time could be attributed to extensive Legal interactions.

Legal precedents on the question of Suspensions are numerous- the headline case is probably Governor and Co of Bank of Ireland v Reilly [2015] IEHC 241 which refers in its texts to Morgan v Trinity College Dublin [2003] 3 IR 157.

The whole area is discussed at length by Mr D Ryan in Redmond on Dismissal Law, 3rd Ed 2017 at Para 8.16 to 8.32. Suffice to say the Legal environment is now clearly moving in the direction that states that Suspension is an Employer situation that has to be treated with considerable caution and careful consideration of the effects on the Worker.

In this case the Suspension was for a period of almost ten years.

The Worker and the Employer here have had many outings to various forums in the period in question. It is not the function of an Adjudication Officer in an Industrial Relations Act,1969 case to comment on this area.

However, wearing a solely Industrial Relations hat and conscious of the evolving Legal environment around Suspensions and the very open question of what could be called “Penalty” imposition in a Suspension, the issue of the Non reckonable Years in this case, appears to be a matter that is best resolved by appropriate Management intervention.  

The Worker has taken Early retirement and both sides seemed keen to put the matters behind them. Addressing the Non Reckonable Years issue positively is a pragmatic “tidy up of the files” and should be addressed by the Employer.

This may require an innovative “red circled” approach in view of the possible legal “hang over” from SI 63 of 1925 but is well within the capacity of the Employer, a very large Organisation.

It should also be noted that the Worker was not without responsibility in being unaware of the Superannuation issue. Some contribution from her side is also to be recommended.

Suspension, Superannuation, Buy Back of years.