INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY MANDATE)
Chairman: Mr McGee
Employer Member: Mr Grier
Worker Member: Ms Ni Mhurchu
1. Appeal Against Rights Commissioner's Recommendation R-035978-Ir-05/TB.
2. The appeal concerns a worker who commenced employment as a part-time sales assistant working three days per week in October, 1984. In December, 1984 she began working full- time in the employment and in January, 2002, she reverted to a three-day week for personal reasons. The worker retired from the employment in October, 2004. The Union claims that during the worker's time in the employment she had never received confirmation that she had become a permanent member of staff and it appeared as a consequence of this that she was never invited to join the Company' Pension Scheme. When she retired she did not receive a pension or gratuity from the Company. The Union claims that it was the Company's fault that the claimant's employment position was not regularised and it is seeking that the Company make appropriate pension provisions for the claimant. The Company rejected the claim stating that the pension scheme was notified to workers through periodic notices from 1984 and in the 1990's inviting workers who were not members of the pension scheme to join it. The claimant did not do so and the Company was not now in a position to facilitate her. The dispute was referred to a Rights Commissioner for investigation. On the 12th December, 2005 the Rights Commissioner issued his recommendation as follows:
"In the circumstances of this case I recommend that the Company pay the claimant a once-off lump sum of €20,000 in full and final settlement of this matter".
On the 13th January, 2006 the Company appealed the Rights Commissioner's Recommendation to the Labour Court. The Court heard the appeal on the 16th June, 2006.
3.1. The Court has already recommended against a group of workers in a similar claim in 2002 (LCR 17093 refers).
2. The claimant was a permanent employee of the Company. To suggest that the claimant, after twenty years of employment did not believe her position to be permanent, is absurd.
3. The claimant and her union understood the position to be permanent and the Union is aware that the legislation would provide that this would be the case. It is disingenuous to allege that the claimant was barred form the pension scheme on the basis of her contractual status.
4. While the Union stated that the claimant had in the past attempted to raise the issue informally neither the Company or the Union has been able to supply evidence of this contact.
5. There was nothing in the rules of the Company's staff pension scheme that would have the effect of debarring the claimant from membership of the scheme. The Company did not act in a way that deliberately or intentionally excluded the claimant from joining the pension scheme.
6. It has been suggested by the Union that the Company should have made provision for the claimant's entry into the scheme when she made efforts to join. The claimant made no effort to join the scheme. The claimant was directly approached by a trustee of the scheme in 2001 and she declined to join at the time.
7. In the 1980's to have access to a pension scheme was a significant and unusual benefit. Access to the Company's Staff Pension Fund was seen as an attractive term and condition of employment. The Union has claimed that the claimant was unaware of her entitlement to join the pension scheme. It is difficult to believe that the claimant maintains that neither the Company nor indeed the Union or fellow employees had made her aware of her entitlement to participate in the scheme.
8. Concession of the claim could have potentially knock-on effects across a large number of other employees including former employees who freely elected not to join the scheme but the Company believe they were well aware of their eligibility to join.
4. 1. There was /is nothing in the rules of the Company's Staff Pension Scheme which would have the effect of debarring the claimant from membership of the scheme.
2. Being a full-time employee for twenty years , the claimant was never given a contract or confirmed as a permanent employee.
3. The Company, either willfully or otherwise through its actions denied the claimant access to the Staff Pension Scheme resulting in no pension provision for an employee with twenty years service. The actions of the Company are discriminatory on the grounds of gender. Unfortunately, now because of the claimant's age it is not possible for the Union to pursue the issue through the appropriate legislative process- Employment Equality Act.
4. The claimant did not raise the issue formally because any enquiries in relation to the matter had produced a negative response.
5. On a without prejudice basis the Union sought to resolve the situation as it had resolved similar issues with other employees without success. Despite this the Union was able to point to the payment of an "ex-gratia" pension to a female part-time employee in similar circumstances.There are a number of such ex-gratia pensions in payment, additionally these pensioners also receive the two thousand euro Christmas bonus from the Pension Fund.
6. Existing Company employees have full access to the Company's Staff Pension Scheme. Ironically, a worker commencing employment in Arnotts in 2006 will benefit from the "holiday " pension contributions and could conceivably retire on full pension after making very little contribution to the fund..
7. Both the Company and the Pension Fund are in a very healthy financial position and it is within their respective financial capabilities to make a retirement provision for the claimant.
The Court has carefully considered this case. In all the circumstances, the Court agrees with the contention that the Company could and should have done more to encourage and facilitate the claimant to join the pension scheme.
It is the view of the Court also, however, that the claimant was negligent in her own failure to pursue the matter effectively either personally or through her union and at an earlier date.
The Court decides, having reviewed the matter that the Rights Commissioner's Recommendation be varied to a compensation award of €9,000.
Signed on behalf of the Labour Court
29th August. 2006______________________
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.