ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:  IR - SC - 00001931

Parties:

Dispute:

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Date of Hearing:             19/02/2024

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute to me by the Director General, I inquired into the dispute  and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.

Background:

The Worker believes she has been wrongly treated in relation to enhanced benefits of a Pre-retirement initiative scheme.  She seeks the full application of the Scheme for the period from 1st April 2019 to 7th May 2023 (the date on which she retired).

Summary of Workers Case:

The Worker retired on 7th May 2023.  She was enrolled in the pre-retirement job-sharing scheme and signed up for same 4 years prior to her retirement.   She was given assurances prior to her retirement as to what her pension would amount to.  She was provided with a Pension estimate on 18/06/2020 which illustrated the scheme factored into her planned retirement date at 60 years of age.  Her pension was calculated based on 34 years under the scheme.  Her employer then reneged on their promise after she had retired and her actual pension was calculated on 32.15 years.            The Worker had a legitimate expectation as to what she would receive and this expectation was relied upon in deciding her retirement date.   The employer provided a pension estimate that indicated that if she retired at 60 years the pension would be based on 34 years’ service and it is argued they should not be allowed to resile or deny the existence of that situation.  It is argued that the claim can be distinguished from the Labour Court ruling LCR22904 CD/23/137 as it stands out on its own particular merits.

The representative of the Worker outlined the history and details of the 1997 Pre-retirement initiative, its suspension in 2009 and its re-instatement in 2017 by Circular.   It is submitted that the Worker was denied the benefit of the Pre-retirement initiative after the fact as she was advised that she could only do so in the context that she must work for a full five years on the Scheme if she wished to avail of the benefits of the 2017 Scheme.  It is contended that this requirement is a misinterpretation of the Circular governing the re-instated scheme.   The failure of the employer to communicate with the Worker on the effect of retiring on her chosen date regarding her eligibility for the scheme has resulted in financial loss to her upon her retirement in May 2023.

Summary of Employer’s Case:

Preliminary Issue

The Employer contends that the Adjudicator does not have jurisdiction under section 13 of the Industrial Relations Act 1969 to investigate this complaint as it relates to the pay of a body of workers.  Section 13 provides:

13. (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 IV of the Principal Act, a party to the dispute may refer it to a rights commissioner.

In a recent Labour Court ruling, LCR22904, CD/23/137 the Court stated:

It is common case that the Court is effectively being requested to interpret a circular or circulars governing pension entitlements of those workers and that those circulars have national application….

There can be no doubt that a decision of the Court as regards the interpretation of the national circulars at issue in the trade dispute between the parties is connected with the rates of pay of a body of workers.

The Court has considered carefully the oral submissions of the parties on this point and has concluded that, having regard to the Act at Section 13, it does not have jurisdiction under the Act to make a decision in the within appeal.

In light of the foregoing, it is contended that this complaint does not come within the scope of section 13, and it is requested that the Adjudication Officer decide that they do not have the jurisdiction to issue a recommendation on the matter.

The Employer addressed the substantive matter regarding the application of the Pre-retirement Initiatives 1997 and 2017.  It is submitted that the two schemes are different in that the 1997 scheme was designed to facilitate early retirement whereas the 2017 scheme was designed to facilitate retention.  The Employer rejects the Worker’s contention that she was entitled to retain the enhanced pension arrangements under the 2017 Circular.  The objective of the 2017 was to facilitate retention and it required nurses to work for a maximum of 5 years prior to the compulsory retirement age of 65 years.   The only time a person could avail of the period of less than 5 years was where they had less than 5 years to age 65.  In this case, the Worker commenced her job-sharing arrangement on the week commencing 1st April 2019 and was due to cease the arrangement on 1st April 2024 i.e. on completion of 5 years’ service on the arrangement.  She chose to retire on 7th May 2023, i.e., on completion of 4 years and 1 month’s service under the scheme.  As she did not complete the full five years, she was not eligible for the enhanced superannuation benefits.   The Union has sought to rely on the terms of the 1997 Circular and claim that the 2017 scheme was an extension of the 1997 scheme but this is incorrect.

Notwithstanding, it is submitted that the Adjudicator does not have jurisdiction under section 13 of the Industrial Relations Act 1969 to investigate this complaint as it relates to the pay of a body of workers.

Conclusion:

Dated:   11th April 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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