Worker

Employer

Anonymised Parties

Finance Worker

Health Service Group

Representatives

 Alastair Purdy & Co. Solicitors

Elaine Kelly ByrneWallace LLP/Niamh McGowan BL

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 - 00001285

17/04/2023

The Worker backfilled a senior finance role in the Group for a period of 5 years approximately. The claim is about seeking pension rights and loss of earnings based on returning the worker to his old role, what the Employer describes as his substantive role.

 The Worker seeks to maintain the pension rights and salary as if he was permanently assigned to the that Group role, arising from completing 5 years in the more senior role. The role no longer exists.

 A complaint was lodged with the Commission initially before the internal procedures had been exhausted. As is the required practice for most Trade Disputes a referral is made after the internal procedures have been exhausted. The matter was referred for an internal appeal/investigation so that the internal procedures would be exhausted. The referral to the WRC for a trade dispute follows the internal process is finished.

The internal appeal found in favour of the Complainant and the redress was linked to another colleague who had pursued his claim through the courts.  

The Employer states it has no means of making the changes sought by the worker as the statutory basis of the pension scheme doesn’t allow for such an enhancement.

The worker stated that it was belief that another worker did receive such benefit based on similar facts and therefore that should apply to him also as determined by the internal investigation.

Allowing for the averaging mechanism and reference period provided for in the pension scheme the worker will benefit to a degree from the time he spent in the role; however, as he is now back on the lower salary that will not be the full pension benefit if his time in the higher Group Role had been red circled.

This is a trade dispute and not an employment rights referral. It doesn’t proceed based on formal evidence and cross examination so that a right can be determined to apply or not based on a statutory remedy.

The application of the law and who is entitled to seek a remedy under a particular statute rest with the Superior Courts. Assumptions made about who can or cannot avail of a particular right must change based on Court determinations. That in turn may affect the time to bring a complaint. A distinction does exist between the Plaintiff who initiates the process to assert a statutory right and someone who then uses that legal case as a comparator in a trade dispute. Legal rights not exercised in time are lost. However, a trade dispute does not have the same bar, as it is an entirely different process and is a voluntary process.

As the referral is made under the relevant Industrial Relations Act, it is a process that addresses the dispute as an industrial relations issue and not as a legal rights claim. It is voluntary and the reference is not a legal analysis of a right absent of any evidence, rather an exploration of what may resolve the dispute between the parties.

The Worker relies heavily on his right to his pension benefits being adjusted to the higher role, to reflect the fact that the nature of his recurring fixed term contracts in that role over 5 years established his right to be appointed to that role and to enjoy the pension benefits based on that higher salary. He also is due a back payment arising from the difference in salary between the higher paid role and his current role.

The Employer stated that there were exceptional reasons for the period of appointment to have extended in the temporary role for 5 years. A distinction is required to be made between the right to make a legal claim and whether that claim is objectively justified or not. That issue has not been determined.

 A party who pursues a claim through the courts and arrives at an agreement often is bound by confidentiality. Such agreements when entered into cannot be relied on by someone else who speculates that it must also apply to them. It is also the case that any confidential information that is gleaned arising from one’s position cannot be used as a comparator in a trade dispute.

The matter before the Adjudicator is a trade dispute, it is not a legal claim for a statutory right. It relates to a voluntary process.

The Employer rejected the internal determination as it conflated the legal action of one colleague with the trade dispute of another and was unenforceable as it referred to matters that were essentially confidential.

The Employer cannot enhance the worker’s pension as it is not provided for in the relevant statutory instrument.

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

While both parties have made very substantial submissions, this trade dispute is about two matters a pension claim based on a salary of a specific senior grade. The role may no longer exist; however, the grade still exists.

A claim for payment of earnings arising from the failure to apply the higher rate after the 5-year assignment ended and the worker returned to what is called his substantive role.

It is a harsh reality; however, this claim cannot be pursued based on a legal rights framework. It is a voluntary process. That means there is no right to an enhanced pension or indeed to backpay.

Industrial Relations frameworks do provide for compensation payments when practices give rise to outcomes that are perceived to be harsh and fail to recognise the contribution made at a higher level for 5 years and then it stops suddenly as if the assignment never occurred.

 There are two elements where compensation can address the perceived wrong and they relate to the effects that the change has had on the individual and also a payment for the loss of the higher salary held for 5 years.

For the effects of the decision not to appoint into the permanent role based on being in that role for 5 years I recommend a compensation payment of €45,000.

I also make a recommendation that a once off back payment of €50,000 be paid as compensation for the stark drop in earnings.  He had been on a much higher salary for 5 years before returning to his substantive role. That payment to be deemed to have accrued at the date of reassignment to his substantive role and to be treated as earnings for pension purposes for that relevant year.

The recommendations if accepted to be in full and final settlement and confidential to the parties.

Successive Contracts-Permanent Employee-Trade Dispute