Worker

Employer

Anonymised Parties

Revenue Collector

County Council

Representatives

Lynn Coffey Fórsa Trade Union

Amanda Kane Local Government Management Agency (LGMA)

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 - 00001822

29/09/2023

The worker previously had additional duties as a Registrar of Electors. The worker received an allowance for his role. As it was a pensionable allowance, pension contribution were taken.

In October 2021 the employer decided to stop having workers undertake these additional duties.

On the 16th of August 2022 the worker’s Trade Union sought a refund of the worker’s pension contribution as he would not benefit from same upon retirement. When the worker retires the 3 years with the highest salary from the previous 15 are used to work out his pension entitlements. The worker’s expected retirement date is May 2038, 18 years after his last payment for the additional duties. Thus the higher salary obtained by discharging the additional duties would not be covered by the 15 year bracket. 

On the 19th of December 2022 the employer offered a buy out for the loss of the allowance. The letter also stated the refund of the pension contributions was being considered separately.

The employer then wrote to the worker on the 13th of February 2023 that no refund of the pension contribution could occur.

The complainant accepted the buy out on the 4th of April 2023, which was processed on the 28th of April 2023.

On the 14th of August 2023 the Trade Union again contacted the employer about the refund of pension contributions. The employer reiterated their position.

In respect of the suggestion the matter should be before the Pension Ombudsman, the worker’s representative pointed out that there was correspondence between the parties and the employer had not highlighted this issue until now. She submitted there was no suggestion of any error with the rate of the pension contribution, rather the worker was seeking a refund of same.  The worker had tried to address the matter locally.

The worker’s representative noted that there was no suggestion there was an error in respect of the pension payments rather the issue was the worker would not be receiving the benefit of same. Thus it was more appropriate to proceed with the IR avenue. 

The worker had paid into the pension fund which was in addition to the payments from his primary role. He had paid into this in full expectation that he would receive the full benefit of same. This was one of the advantages of working in the public service. The council unilaterally stopped these duties in 2019/2022 without consultation. Thus this left the worker outside of any benefit and would be at a loss of these monies. The worker had to pay into the pension.

The circulars provided that upon retirement the worker would take the best salary for three out of the last ten years. A labour court decision had extended this to 15 years. It was 18 to 19 years until this worker retired. It was accepted that the worker had received the benefit of the buyout but at the time of the buyout the worker’s representative submitted that he was not aware of the pension issue. There were three other colleagues who also received the buyout. However these colleagues would receive the benefit as they would retire in the next ten years. 

The worker’s representative submitted that the worker was under pressure to sign the buyout at the time. She submitted that he was told that if he did not sign then he would not receive it. The worker’s representative accepted that he knew the pension was in dispute. It was their understanding that the pension was a separate issue to what he was signing. The letter of 13 February 2023 was brought to my attention.

The worker’s representative submitted that it is not unusual for individuals to seek to raise complaints that are outside of the circular. The representative noted that the labour court did not make a decision it was agreed between the parties to extend the time limit to 15 years. 15 years encompasses half of most people’s work life. The worker’s representative also submitted that the correspondence was exchanged in good faith that this issue of the pension was outside of the full and final settlement that was entered into between the parties.

The worker submitted that he had believed that he would have this position until he retired and therefore get the benefit of paying into the pension. The worker’s representative highlighted that he was now going to be treated differently to other workers doing these duties. He had lost his duties without any negotiation.

In respect of the agreement there was pressure to sign same to avail of the buyout allowance. The pension issue remained outstanding at that stage. The whole matter had take over four years and had remained as a cloud over the worker’s head. It was submitted that the employer had not acted in the worker’s best interest. 

The worker’s representative submitted that when the issue was looked at in 2012, it was a very different time. There was an economic crash in the country. 

The worker submitted that his understanding when he was signing the buyout was that the pension was an entirely separate matter. He referred to the fact that he was the only one who had done this role who would now be suffering the loss of the pension. He has two children one in college and one doing the leaving cert and he had expected the employer to deal with this matter fairly.

It was submitted in respect of the suggestion of retiring earlier that if that occurred an adjustment could be looked at by the worker’s representative. A lump sum could be deducted. 

The employer’s representative stated that the matter concerned a pension refund and could not be dressed up as anything else. Since the 2003 Pensions Act the appropriate route for such matters was to the Ombudsman. If there was an error, the Ombudsman could order a refund and the Ombudsman was best placed to make this determination. The County Council had reviewed the matter and were satisfied that they had engaged the correct process. They accepted they could have pointed out the Pension Ombudsman route earlier.

The employer’s representative explained that the allowance received in respect of this role was in the nature of pay.

The labour court had extended the circular to 15 years. The employer did not accept that the worker was unaware the pension was an issue before the buyout. It first received correspondence on his behalf of the 16th of August 2022. The buyout was accepted by the Claimant on the 4th of April 2023 and processed on the 28th of April 2023.

The employer’s representative stated that the settlement was full and final. There was no mechanism for them to do what the worker wanted, for him to be compensated for the loss of the pension. It was not accepted by the employer that the pension was going to be a separate issue to the full and final settlement. There is no guarantee when you were undertaking these extra duties that you would receive the benefit of the pension payments. It was not in the gift of the employer to make a good will gesture. There would be potential wider ramifications in the public sector.

The representative from the employer submitted that the allowance had been reviewed in 2012. 

It was disputed by the employer that the pension was ever supposed to be treated as a separate issue.

The employer submitted that the worker cannot avail of a refund in respect of his pension payments that that would be outside the terms of the pension. The employer also submitted that it was possible the worker would retire early and then receive the benefit of the pension payments.

The employer’s representative submitted that as a refund had never occurred previously it was impossible to know whether an arrangement could be made in the circumstances, that the worker retired early and had already had a refund of the pension.

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

Section 13 (2) and (3) of the Industrial Relations Act 1969 sets out the role of adjudicators in such disputes as follows

“(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.”

As the parties can see, the only outcome open in the absence of a settled dispute, is to make a recommendation on the merit of the dispute.

There can be no doubt that a recommendation as regards the interpretation of the national circulars and the buy out in respect of the loss of the additional duties in issue in the trade dispute between the parties is connect with the rates of pay of a body of workers. I have no role in making an order for rates of pay under the Industrial Relations Act 1969.

After hearing from both parties, I am satisfied that the matter relates to rates of pay of a body of works. Having regard to section 13 of the Act, I do not have jurisdiction under the Act. There I decline jurisdiction to hear the grievance and make no recommendation.

Pension; Pay; Industrial Relations; Jurisdiction