Complainant

Respondent

Parties

Marita  Gonsalves

Department Of Housing, Local Government And Heritage

Complainant

Respondent

Anonymised Parties

Representatives

Niall Fahy B.L. instructed by the Chief State Solicitor’s Office

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022

CA-00055524-001

13/03/2023

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-00055730-001

14/03/2023

The complainant made claims in relation to the treatment she received when she reported severe and debilitating pain from a ganglion.

The complainant submits that in October 2021 she reported extreme pain from a ganglion and requested help to allow her to keep typing. It was agreed to install voice recognition software but she was told she had to get a consultant’s report to support her request. Even when she got the report there were delays caused by supply issues and problems loading the software. Because of the ongoing pain and the lack of any accommodation she went on sick leave in January 2022.

She remains on sick leave and this has resulted in her being paid Temporary Rehabilitation Remuneration (TRR). She says that, in accordance with Civil Service Circular 1/1982 her situation should be considered to be “a period of leave due to an occupational injury or disease” and it should not “adversely affect sick pay entitlement”. She has suffered a loss of income and was advised periods on TRR do not count as service and therefore do not count towards her pension.   

The respondent submits the complainant made a request for speech recognition software on 6 October 2021. She was advised she needed a letter from a consultant to support this request. In the meantime HR contacted IT to see if free software could be installed. They were told there was a problem with this software because of security issues. It was agreed Dragon software would be installed. The complainant was on sick leave from 20 December 2021 to 19 January 2022. On her return she provided a letter from her consultant and the software was ready to install but there was an issue with the software licence key and the installation had to be postponed. The complainant took sick leave from 24 January 2022. By 2 February 2022 the issue with the software had been resolved and was ready to install on the complainant’s return to work.

The respondent submits the arrangements for paid sick leave are set out in Circular DPE056/046/2014 and they have followed these arrangements. Sick leave pay can be extended under the Critical Illness Protocol and the complainant made an application. The CMO advised on 22 April 2022 that while the complainant was temporarily unfit for work she did not meet the CIP criteria.

There remained a residual discretion for management to award CIP to the complainant in exceptional circumstances, which are contained in Appendix 3 of Circular 05/2018. The respondent decided that there were no exceptional circumstances justifying the award of CIP. The complainant was told of this decision by letter dated 18 May 2022. She appealed the decision and following consideration of all relevant circumstances the appeal was denied on the basis that exceptional circumstances did not exist to warrant the granting of additional paid sick leave. The complainant was advised of this decision by letter dated 3 June 2022.

The respondent confirmed the complainant went on to TRR from 18 May 2022. Section 4 of the Rules for Pre-existing Public Service Pension Scheme Members Regulations 2014 (S.I. No 582 of 2014) provides as follows:

“”Temporary Rehabilitation Remuneration” or “Pension rate of Pay” means a payment made, in certain circumstances, by the relevant body to a member on sick leave. Any period in respect of which the member is in receipt of such a payment does not constitute pensionable service in this Scheme and the payment does not constitute remuneration.”

The respondent submits this stands to reason because eligibility is determined with reference to pension entitlements and it is a benefit that is related to pension entitlements. In a similar way, years spent in receipt of ill health retirement pension are not counted as years of service for the purposes of pension entitlements.

The respondent submits that the Sick Leave Act 2022 post-dates this complaint. The Sick Leave Act was enacted on 20 July 2022 and the commencement order (S.I. No 606 of 2022) provides that certain provisions of the Act come into operation as and from 29 November 2022 and the remaining provisions come into effect as and from 1 January 2023. This Act is not expressed to be retrospective in its effect. The latest event that forms this complaint was 2 June 2022, when the complainant was informed of the refusal of her CIP appeal.

The respondent further submits that the complaint refers to events up to 2 June 2022 and was not referred to the WRC until 13 March 2023 and is therefore out of time, in accordance with section 41 (6) of the Workplace Relations Act 2015.

In relation to the complaint under the Pensions Act the respondent submits it is not clear which of the protected grounds the complainant invokes in her complaint, nor does she invoke a comparator. It is therefore submitted the complainant fails in meeting the initial burden of proof.

Notwithstanding this, the respondent submits the complainant has been treated identically to any appropriate comparator. The provision regarding TRR not counting to reckonable service applies to all persons on TRR.

Sick Leave Act, 2022: as submitted by the respondent the provisions of this Act came into effect on 29 November 2022 or 1 January 2023. The complainant has referred to events or incidents up to when she was informed of the outcome of her appeal to the decision not to award her CIP, and she was advised of this by letter dated 2 June 2022. I acknowledge there was subsequent correspondence between the parties but none of this has formed part of the complaint.

I therefore conclude the Sick Leave Act, 2022 was not in force at the time of the events forming this complaint and I, therefore have on jurisdiction to investigate the complaint.

Pensions Act, 1990: the matter I have to consider is whether the Complainant was discriminated against in relation to the operation of the Respondent’s Occupational Pension Scheme. The complainant did not fill out the form conventionally but it is clear her complaint of discrimination is on the grounds of disability.

The Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act, 2004 provides at Section 66 -

"For the purposes of this Part, discrimination shall be taken to occur where --

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds mentioned in subsection (2) (in this Part referred to as the 'discriminatory grounds') ........

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Part) are -- ....................

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Part referred to as ‘the disability ground’).

Section 70 of the Act states: "(1) Subject to this Part, the principle of equal pension treatment is that there shall be no discrimination on any of the discriminatory grounds (including, subject to section 68(2), indirect discrimination) in respect of any rule of a scheme."

The appropriate rule is that submitted by the respondent, and is Section 4 of the Rules for Pre-existing Public Service Pension Scheme Members Regulations 2014 (S.I. No 582 of 2014) which states:

“”Temporary Rehabilitation Remuneration” or “Pension rate of Pay” means a payment made, in certain circumstances, by the relevant body to a member on sick leave. Any period in respect of which the member is in receipt of such a payment does not constitute pensionable service in this Scheme and the payment does not constitute remuneration.”

The rules of the scheme do not allow those administering the Scheme to assess whether or not a member is put on TRR or should have retained their sick leave pay. The Scheme was informed the complainant was put on TRR and they implemented Section 4 accordingly. In that respect all those put on TRR are on extended sick leave, which in most cases would amount to a disability. The fact that TRR does not constitute pensionable service is applied irrespective of the person’s sickness or disability and I find the relevant rule of the Scheme could not be found to be discriminatory in relation to this complaint.

As such I find the complainant is unable to establish facts “from which it may be reasonably inferred that there has been a breach of the principle of equal pension treatment in relation to” her and cannot establish a prima facie case, as required by section 76 of the Act.

Sick Leave Act, 2022: for the reasons given above I find that I have no jurisdiction to investigate this complaint and it fails accordingly.

Pensions Act, 1990: for the reasons given above I find the complainant has failed to establish a prima facie case of discrimination under the Pensions Act and the claim fails accordingly.

Sick Leave Act – not enacted

Pensions Act – no prima facie case