Worker

Employer

Anonymised Parties

A Driver

A Care Organisation

Representatives

Mr G Kennedy BL, instructed by P Molloy, Solicitor of Melaw & Co

Mr JJ Tevlin, HR Consultant and Company Managers

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 - 00002752

11/06/2024

The issue in contention concerns a Pension situation for the Worker. On joining the employment, he was led to believe, from his contract of employment, that he was joining the Single Public Service Scheme. After some two years he was informed that he was instead now enrolled in the VHSS -Voluntary Hospitals Scheme. He maintained that this was done without any consultation or agreement with him and was contrary to his Contract of Employment.

The employment, as a Driver, began on the 15th June 2020 and continues.

The rate of pay was stated to have been €15.38 per hour as of May 2022. Hours worked were variable.

The Worker, who made a very comprehensive Oral Testimony, was represented by Mr G Kennedy BL. A substantial written submission was also relied upon.

Bearing in mind the cross over with the IR Act,1969 dispute the essence of the Terms of Employment (Information) Act, 1994 complaint was that Section 9 of the Contract of Employment, dated the 29th June 2020 stated

“Pension

The Clinic operates the Single Public Service Pension Scheme (SPSPS) which is contributory. You will be required to join this scheme from your date of commencement of employment. Further details will be provided at induction.”

This Employment contract was extended on the 20th May 2022. The Pension situation was not altered in the extension Contract.

In September 2022 the Worker became aware that he was not in the SPSPS but in fact in the HSE / Voluntary Hospitals Superannuation Scheme – VHSS Scheme. The VHSS Scheme can be on no benefit to him as he is already in receipt of a Public Service Pension. The VHSS Scheme was never canvassed with him, and he was in complete ignorance of it, always believing that he was in the SPSPS Scheme from which he could receive benefits. In plain English all his contributions to the VHSS Scheme are simply of no benefit to him and represent a considerable loss of money.

Mr Kennedy referred to Sections 3 & 5 of the Terms of Employment (Information) Act, 1994 as amended by the Employment (Miscellaneous Provisions,) Act ,2018.

Section 5 of the Terms of Employment (Information) Act, 1994 states

Notification of changes.

5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) the day on which the change takes effect, or]

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute , other than a registered employment agreement or employment regulation order, or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.

Mr Kennedy argued that the Worker had entered the employment under the clear belief, based on his written Contract, that he would be part of the SPSPS arrangement. Several of his colleagues, from a similar previous employment – the Gardai, were, without any difficulty, in the SPSPS. The Employer had changed the Contract of Employment without notification or written communication to place the Worker, without his consent, in the VHSS Scheme.

Arguments from the Employer regarding what could at best be described as “Administrative misadventures or mix up” could not be advanced to justify the breach of the Act. It was well understood Law that the Employment Contract was the premier document and had to take precedence. A fundamental breach of Section 5 had taken place.

It was important to note that the Worker had engaged in extensive written/e mail correspondence with the Employer since 2022. He had displayed considerable patience and accommodation with Employer tardiness in replies. A final Employer position was not received until April 2024.

It was recognised that a possible avenue of progress to resolve this issue lay in Section 10 and Section 48 of the Public Service Pensions (Single Scheme and Other Provisions) Act 2012. This Act was central to the Employer arguments as set out in their April 2024 response. However, this was a lengthy process and would require the Minister to, by Order, disallow Section 10 as it applied to the Worker.

The issue of the Public Service Pensions (Single Scheme and Other Provisions) Act 2012 also raised the very important question as to whether or not the application of Section 9 of the original Employment contract of June 2020 was in effect, even properly Legal, as regards the Worker.

The Employer suggestion, (to rectify the Pension situation,) at one stage during the proceedings, that the Worker resign and then after a period of time re-apply for his employment was a bizarre and completely unacceptable suggestion.

The Worker was now, seeking a Direction from the Adjudicator that the Employer “administrative mix up” be corrected and following the Legal primacy of the Employment contract, the membership of SPSPS be reinstated forthwith or failing that the contributions paid be refunded or transferred to a Pension arrangement such as a PRSA (Personal Retirement Savings Account) that he could actually financially benefit from.

Mr J J Tevlin, Consultant, represented the Employer. Oral Testimony was given by Managerial witnesses. A Written Submission was heavily relied upon.

In essence Mr Tevlin argued that while the delay from September 2022 to April 2024 in giving a definite answer to the Worker was most regrettable it did not alter the fundamental situation.

The Worker was a former Public Servant, a retired Garda, who had almost immediately on Retiring on full pension, taken up a position as a Driver with the Employer. It was very important to note that a gap of some 26 weeks between the employments did not occur.

In genuine error, in his initial Contract, he was advised that he had to join the SPSPS. This error was not noticed until September 2022. Extensive correspondence followed involving numerous Pension Sections in the Employer, the HSE and eventually the Department of Public Expenditure and Reform.

The positon is governed by Section 10, Subsection 10:3 of the Public Service Pensions (Single Scheme and Other Provisions) Act 2012.

(3) Where—

(a) a person duly receives a written offer of appointment as a pensionable public servant before the operative date and takes up that offer on or after that date,

(b) subject to section 48, a person was serving in a public service body as a pensionable public servant before the operative date and left the relevant office or position but, subsequently, takes up appointment as a pensionable public servant—

(i) under the same contract of employment as he or she had been so serving under, or

(ii) within 26 weeks after his or her last day of service before that date,

(Highlighting by Adjudication Officer)

The plain fact was that entry to the SPSPS was not possible as the Worker did not have the requisite gap in Service (26 weeks) between his time as a Garda and taking up employment as a Driver with the Employer. In plain English, the hands of the Employer were tied by Legislation and there was nothing they could legally do.

It was open however to the Worker to apply to the Minister under Section 48 of the Act, copied below, for a resolution of the difficulties.

Application of Scheme to certain persons.

48.— (1) Where the Minister considers it appropriate in the circumstances, the Minister may, at his or her discretion, by order set a date or dates beyond which the provisions of either or both—

(a) subsections (3)(b), (4) and (5) of section 10, and

(b) subsections (3), (4) and (5) of section 2 of the Public Service Superannuation (Miscellaneous Provisions) Act 2004,

shall not apply having regard to—

(i) the orderly cesser of a pre-existing public service pension scheme either generally or in respect of any class or classes of persons, or

(ii) providing for efficiencies in the management and administration of the public service generally or any part of it.

(2) Where an order is made under subsection (1) that relates to a person, then nothing in this section shall be read so as to detrimentally affect any entitlements of such person that accrued before the order was made

Overall and in summary the Contract of 29th June 2020 had contained an administrative error that had inadvertently arisen.

The correction of this error had taken some considerable time, and this was sincerely regretted but this did not fundamentally alter the position.

The WRC had limited jurisdiction in the Pension area primarily in the Equality and Discrimination area and was not the appropriate forum to Resolve this case.

Initially Section 48 of the Public Service Pensions (Single Scheme and Other Provisions) Act 2012 had to be explored for a resolution and following that, if necessary, the Office of the Financial Services and Pensions Ombudsman was a much more appropriate forum.

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

3:1        The Law

The Employer relied heavily in their rebuttal on the Public Service Pensions (Single Scheme and Other Provisions) Act 2012 to base their case that the Employer was simply carrying out a required statutory function and their hands were tied. 

3:2       Consideration of the Evidence presented.

A review of the evidence both oral Testimony and written submission is required.

The Worker retired, on full pension, from the Garda Siochana in May 2020 and took up employment with Employer in late June. In his evidence he stated forcibly that the Pension situation was never explained to him and that he would have to have an employment gap of 26 weeks if he was to join the SPSPS. If this had been explained to him, he would have had to seriously consider not taking the job offer as a Driver. Nothing was explained and all rested until September 2022 when the issue of Pension Benefit Statements arose. It is worth noting that the Contract had been renewed in May 2022 with no mention of any changes to the Pension situation.  At some stage during this process, he was placed in the VHSS Scheme without any written or other notification to him.

The question arises, for the Adjudication Officer, does this unfortunate process qualify for the exemption, taking guidance from Section 3(1)(B) of the 1994 Terms of Employment Information Act.

“that the error or omission was made by way of a clerical mistake or was otherwise made accidentally and in good faith”

In common parlance a clerical mistake even if made “accidentally and in good faith” would be regarded as having a “shelf life” of at best a few weeks. In this case the error was not discovered for almost two and half years and was not satisfactorily explained for almost four years. In addition, the move of the Worker to the VHSS Scheme was never properly explained or advised to the Worker. The opportunity was the renewal of the Contract in May 2022, but this appeared to have been missed.

Mr Tevlin, a very well-respected Senior HR Consultant, accepted that things had gone awry but pleaded that pensions was a very complex area that quite possibly the Administrative staff of the Employer had not been quite “up to speed” in.

3:3       Adjudication Conclusions & Recommendations under the Industrial Relations Act,1969

The Industrial Relations Act,1969 essentially seeks a Recommendation from an Adjudication Officer as to how best, in his/her opinion, an Industrial Relations dispute can be resolved.

Any such Recommendation has, however, to be within the bounds of existing Legislation.

Mr Devlin was quite accurate in his view that the Pension & Superannuation area is dogged by complexity. Operating Administrative staff may easily and without any ill intent make errors and assign new employment entrants to an inapplicable scheme.

In this case, based on Oral testimony, it appeared that previous entrants from a Garda and Fire Brigade background were placed in the SPSPS Scheme. However, it appeared that they may have had the requisite service gap of 26 weeks as is legally required by the Public Service Pensions (Single Scheme and Other Provisions) Act 2012. The Worker here did not have this gap and it is the issue that the entire case now hinges on.

Mr Tevlin, for the Employer outlined the possible avenues for a Resolution - these being principally the use of Sections 10 and 48 of the Public Service Pensions (Single Scheme and Other Provisions) Act 2012 to quickly resolve the issues.

It was noted by the Adjudicator that Mr Tevlin for the Employer was clearly signalling that this was an avenue the Employer would not raise any major objections to.

In all the evidence it was abundantly clear that the Worker was an excellent employee and a major resource for the Employer. The nature of the Driver in the Employment requires a person of maturity and absolute trustfulness - both personal qualities displayed, in abundance, in his Oral Testimony to the Adjudication.

Accordingly, the Recommendation from the WRC under the Industrial Relations Act,1969 is that the Section10/48 process be expedited with all possible speed. If it is necessary, which hopefully it will not be, a further referral to the Pensions Ombudsman needs also to be done with all possible speed.

The questions regarding the Pension Deductions made by the Worker to date will have to form a part of the resolution process. They cannot represent a financial loss to the Worker.

The suggestion from Mr Kennedy, for the Worker that the Adjudication Officer, in some way issue a Directive or instruction to the Employer in this case is Legally not possible as the key issue is governed by the Public Service Pensions (Single Scheme and Other Provisions) Act 2012.

Pension Arrangements, Resolution under Sections 10/48 of the Public Service Pensions (Single Scheme and Other Provisions) Act 2012