Worker

Employer

Anonymised Parties

A Family Centre Manager

A Section 56 Child and Family Service

Representatives

Olajide Ogidan, Forsa Trade Union

Peter Gilfedder, 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 - 00002355

12/03/2024

The employer is mainly funded by Tusla, in accordance with s.56 of the Child and Family Agency Act 2013.  In November 2010, the worker commenced employment with a Partnership organisation in the county in which she lives.  For convenience, I will refer to this as “the regional service.”  The employer acquired this service in March 2016 and the worker transferred her employment to the employer in accordance with the European Communities (Protection of Employees on Transfers of Undertakings) Regulations 2003 (TUPE).  When she transferred, her terms and conditions, including her entitlement to a defined contribution (DC) pension scheme, transferred with her.  The employer contributes 10% of the worker’s wages to the pension scheme.

In January 2020, when the manager of a Dublin Family Centre was absent due to illness, the worker agreed to take up a temporary position as acting manager.  She moved from her job in the regional service to a job as Family Centre Manager (FCM) in Dublin.  In February 2021, she was appointed to this role on a permanent basis.  Employees in the Dublin Family Centre are eligible for membership of the Local Government Superannuation Scheme (LGSS) and, when she was appointed to the permanent role, the worker was enrolled in that scheme.  At the hearing, Mr Ogidan said that the worker agreed to take up the job in Dublin with an undertaking that, when a vacancy arose for a FCM in the regional service in the future, she could return to that job. 

In June 2023, a vacancy arose for a FCM in the regional service.  The worker expressed an interest in the role and, from the documents submitted to me at the hearing, it is apparent that the employer was also keen that she would be appointed to the role. Employees in the regional service are not eligible for the LGSS pension scheme and, when the worker was informed that, on her return to the regional centre, she would have to revert back to the DC scheme, she decided not to take up the job. 

On June 29th 2023, the worker submitted a formal grievance to the organisation’s HR manager.  On October 11th 2023, the HR manager concluded that the worker was not entitled to remain as a member of the LGSS scheme if she was appointed as a FCM in the regional service.  The worker appealed this outcome to the head of operations.  On January 8th 2024, the decision of the HR manager was upheld and the outcome was not in favour of the worker.

In June 2023, the role of FCM in the regional service was filled on a temporary basis by a man who was age 65 and who was willing to stay on for an extra year.  In March 2024, the vacancy was advertised again, but the worker did not apply.

In accordance with the organisation’s grievance procedure, on March 12th 2024, the worker referred this dispute to the WRC for a recommendation on how the issue can be resolved.

On behalf of the worker, Mr Ogidan set out her case that she is entitled to remain as a member of the LGSS pension scheme if she returns to a role as FCM in the regional service.  The worker explained that, when she went to Dublin in January 2020 to fill in for a manager who was out sick, she remained in the DC pension and it was only in February 2021, when she was appointed to the role on a permanent basis, that she was permitted to join the LGSS scheme.  The worker said that, when she was offered the job in Dublin, she made it clear that she wanted to return to the regional service when the manager there retired.  She said that she has contacts in the region, she is familiar with the people and the geography and she feels that she can make a positive impact.  She claims that, before she took the job in Dublin, she should have been informed that, if she returned to the regional service, she wouldn’t be eligible to remain in the LGSS scheme.  Mr Ogidan said that the worker has looked for a copy of the document that sets out the restriction on her remaining in the superannuation scheme, but this has not been provided to her.

Mr Ogidan referred to a meeting with staff from the regional service and a manager from Tusla in 2016, around the time that the service transferred to the employer.  The staff in the regional service asked about joining the LGSS scheme and they were informed that no new employees would be eligible to join.  However, Mr Ogidan said that the employer continued to permit new employees to join the scheme up until June 2022. 

The worker argues that, when she transferred to the employer in 2016, she understood that employees could not join the LGSS pension.  However, it was never stated that a member of staff transferring into the regional service who is a member of the LGSS scheme could not bring that pension with them.  She said that she can’t understand why an employee who has a pension and is moving within the organisation can’t transfer with their current pension.

The worker wasn’t appointed as a FCM in the regional service and she continues to drive for more than an hour on dangerous roads to get to work.  The position in the regional service was filled by a person who did not originally express any interest in the vacancy and who was permitted to remain in the LGSS scheme when he took up the job.  The worker’s position is that this is unfair and unjust.

Following her unsuccessful appeal, the worker asked to present her case to the board of directors, but this request was refused.  In accordance with s.13 of the Industrial Relations Act 1969, she is requesting a recommendation in her favour.

On behalf of the employer, Mr Gilfedder said that, during discussions about the vacancy in the regional service, the worker was informed that she would have to agree to the terms and conditions of that role.  The job of FCM in the regional service is funded for a DC pension.  The regional service was acquired through a TUPE process in 2016.  Any FCM currently in the LGSS scheme who transfers to the regional service is not eligible to carry their membership of this pension to their new role.  There has been one previous example of an employee who transferred and who wasn’t permitted to remain in the LGSS scheme.

In his submission, Mr Gilfedder provided a chronological account of the worker’s grievance, ending with the decision issued by the head of operations on January 8th 2024, to the effect that the worker was not entitled to remain in the LGSS scheme if she took up a position in the regional service.

Mr Gilfedder referred to Statutory Instrument 125 of 1992, the Child Care Act 1991 (Children’s Residential Centres) (Superannuation) (No.2) Order 1992, which established the eligibility of the employer’s organisation to membership of the LGSS.  This eligibility was because, at the time the statutory instrument was drafted, the employer was operating residential childcare homes directly on behalf of the State.  The employer ceased carrying out this work in 2008, but it was agreed with the HSE that eligibility of certain Family Centre roles for the superannuation scheme could continue.  This eligibility was suspended by Tusla in June 2022 and future eligibility is under review.

The significance of SI 125/1992 is that it demonstrates that the employer has no discretion over eligibility for the LGSS scheme.  Eligibility is historical and, at the direction of Tusla.  It is currently in abeyance.  Prior to the transfer to the employer in 2016, the staff in the regional service were members of a DC scheme.  At the time of the transfer, Tusla refused eligibility for them to join the LGSS scheme and a new DC scheme was established.  Staff in the regional centre have never been members of the LGSS scheme.

The worker joined the LGSS scheme in 2021 when she was appointed on a permanent basis as FCM in the Dublin centre.  She remains in this role, and she remains as a member of the LGSS scheme.  When there were no applications for the job of FCM in the regional service, the employer asked another FCM who was about to retire, to remain on for a year to cover the vacancy.  With the agreement of Tusla, the employer permitted this person to remain in the LGSS scheme until the termination of his contract.  One employee who transferred to the regional service on a permanent basis has relinquished membership of the LGSS scheme.

Mr Gilfedder said that the worker’s grievance was heard in accordance with Statutory Instrument 146 of 2000, the Code of Practice on Grievance and Disciplinary Procedures.  The employer acknowledges that the worker did not accept offer of the role of FCM in the regional service in circumstances where she did not agree to the terms of the pension scheme.  Mr Gilfedder argued that the employer cannot be expected to create superannuation pension eligibility for the worker on a permanent basis when it does not have the authority, funding or power to do so.

The worker has been employed by this employer, including a predecessor service, since 2010.  Until February 2021, when she was appointed to a new role in a Dublin centre, she was a member of a DC pension scheme.  Employees in the Dublin centre are members of the Local Government Staff Superannuation Scheme.  This is a historical benefit and stems from the fact that the employer was previously the operator of a childcare centre.  Section 66 of the Childcare Act 1991 provided that such employees were considered to be employees of the former health boards and eligible for membership of the LGSS scheme.  I understand that, since 2022, no new employees have been eligible to join the LGSS scheme.

When the regional service was transferred to the employer in 2016, the staff were not eligible for membership of the LGSS scheme and Tusla agreed to fund the employer’s contribution of 10% of salary to a DC scheme.

At the hearing, the worker informed me that she made it clear when she took the job in Dublin, that she wished to return to the regional centre when the manager there retired.  She said that she was not told that if she returned to the regional centre, she would lose her eligibility for the LGSS scheme.  In June 2023, the FCM in the regional centre retired and the worker expressed an interest in the job.  She was then informed that one of the conditions is that the jobholder is a member of the DC scheme and that the LGSS scheme did not transfer.

The worker looked for documentary evidence of this rule, but she was simply informed that the funding organisation, Tusla, would not agree to employees in the regional service being members of the LGSS scheme.  She said that she finds it hard to accept that employees in the same organisation cannot transfer their pensions from one part of the service to another.  She also argues that the recruitment process that resulted in the filling of the FCM job in the regional service on a temporary basis in June 2023 was not in accordance with the employer’s normal recruitment procedures.

I have a clear understanding of the circumstances described by this worker and I have some sympathy for her situation.  She is caught between the proverbial “rock and a hard place,” because she has a job with a high value, secure, public sector pension, but, in a location that is not suitable and which involves a long commute.  If she accepts the same job in a location near her home, she will be enrolled back into membership of her DC pension scheme, with no guarantee as to the precise benefit at retirement.

I accept that this seems like an unfair option but, in essence, the eligibility for the LGSS scheme is a feature of how the organisation has evolved since it was a residential childcare centre, the adding on of a new service and the change in approach to funding by Tusla in more recent years.

The worker argues that she wasn’t informed that she wouldn’t be permitted to carry the LGSS pension back to the regional service if she returned there.  The corollary of this is that she was never given the impression that she could transfer back with the LGSS pension.  Also, she was fully informed in 2016, that employees in the regional service transferring to the employer would not be permitted to join the LGSS scheme.  No unfairness arises from the employer maintaining a consistent approach to this issue.  At the hearing, the employer’s representatives informed me that employees in their early years service are not eligible for the Tusla-funded DC scheme or the LGSS scheme, and their only option is to set up a personal retirement savings account (PRSA).  This is another example of the difference in approach to pensions, depending on when an employee joins the organisation.   

I have no issue with the fact that an employee who was appointed on a temporary basis to the role of FCM in the regional centre was permitted to retain his entitlement to the LGSS pension until he retired less than a year later.  When the worker was appointed on a temporary basis as FCM in the Dublin centre, she remained on her DC pension until she was appointed to the permanent position.

I do not accept the worker’s suggestion that the appointment of the man who took up the job of FCM on a temporary basis way in June 2023 was irregular.  If the worker had been willing to revert to the DC pension scheme, I am certain that she would been appointed to this role and it would not have been necessary to appoint someone on a temporary basis.  It seems to me that the senior service manager and the head of operations wanted the worker to take up the job in the regional centre, and I am confident that this would have been beneficial for her, in terms of the closeness to her home, but also to the development of the service itself.

The last issue to address is the worker’s complaint that she wasn’t given documentary evidence of the restriction on the application of the LGSS scheme to staff moving from Dublin to the regional service.  I have reviewed the outcomes from the initial grievance hearing on September 27th 2023 and the appeal hearing on December 12th.  It is clear from these outcomes that the pension entitlement for employees in the regional service is a DC scheme based on a 10% contribution from the employer.  At the time of the transfer in 2016, the staff in the regional service were informed that this entitlement would transfer as part of their protected terms and conditions.  While the worker in this case is entitled to look for more enhanced benefits, the response of the employer has been clear, that the pension benefits are not interchangeable between centres.  For me to recommend any change to that policy would be to create further confusion and controversy.

I have considered the submissions of the worker and the employer in this dispute.  As I have set out in this document, I understand clearly the predicament the worker finds herself in.  I recommend however, that the employer takes no further action regarding this dispute.

Public sector pension, defined contribution pension, transfer of employment