ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000126
Dispute for Resolution:
Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1946
12th October 2015
Date of Adjudication Hearing: 29th January 2016
Workplace Relations Commission Adjudication Officer: Kevin Baneham
On the 12th October 2015, the complainant referred a dispute pursuant to the Industrial Relations Acts to the Workplace Relations Commission for adjudication. The complainant is a printer and the respondent is a public body.
The dispute was scheduled for adjudication on the 29th January 2016. The complainant attended the hearing and he was represented by a union official. A work colleague accompanied the complainant as witness. The respondent was represented by a Human Resources Manager and two officials from an interested Government Department attended the adjudication.
At the outset of the adjudication, I indicated that I had worked at the public body concerned and that I had also never been directly employed by the respondent. I left this role in 2005.
In accordance with the Industrial Relations Acts and 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 evidence relevant to the dispute.
Complainant’s Submission and Presentation:
The complaint relates to the complainant’s pension entitlements, in particular the number of years of service attributed to him. In 1992, he commenced working as a printer and was employed by a political party. As part of reforms of the respondent, the printing service operated by each political party was centralised. In terms of his own employment, the complainant outlined that between 1992 and 2002 he had been directly employed by a political party and worked off-site. Between 2003 and 2007, he was physically located in the respondent and engaged via the respondent Secretarial Scheme. In 2007, his employment was transferred to the respondent, where he continues to be employed.
The complainant outlined that he and the printers employed by other political parties together negotiated with the respondent at the time they were to be directly employed by the respondent. He said that he and his colleague (in attendance at the adjudication) negotiated with representatives of the respondent, including with one senior official not present at the hearing. The complainant raised with this official the question of whether his 10 years of service with the political party and his four years of service on the Secretarial Scheme would be reckonable service. He received assurances from the official that they would be included as part of his service. He outlined that he would not have agreed to sign the contract of employment with the respondent had he not received the assurance given by the official. He and his colleagues would have continued to negotiate. He took the statement made by or on behalf of the respondent at face value. He later sought a letter of comfort from the respondent but none was provided. His position was different to the other printers as they had always been in-house, i.e. engaged via the Secretarial Scheme.
The complainant outlined that he wished to have the years of service since 1992 taken into account as service. He indicated that he did not expect to have the full 10 years recognised. He said that the AVC he accrued at the political party had had a value of €13,000, but this had reduced to €10,000 at the time of the adjudication.
The colleague outlined that he had been shop steward for the negotiations. The named senior official had had two meetings with staff and the complainant had raised the issue of his years of service. The colleague said that he heard the senior official say “all your years of service will be recognised”.
In submissions, the complainant outlines that this matter became an issue in 2006 when he raised his years of service. He was informed that he had four years’ service as opposed to the 14 years he had expected. As redress, he asks that the necessary adjustments be provided to reflect his service. In correspondence of the 28th October 2008, the trade union requests that
a special arrangement be made so that the complainant is paid a lump sum to recompense him for the shortfall in his pension.
Respondent’s Submission and Presentation:
The respondent outlined that in January 2007 it sought to centralise the provision of printing facilities. It was at this time that it also sought to negotiate pension arrangements with the relevant trade unions. The respondent outlines that the complainant’s employment between 1992 and 2002 was private sector employment and that he was not a public servant in that time. The complainant had availed of an AVC, a private pension fund. In 2002, the complainant was appointed by the political party to a post under the Secretarial Allowance Scheme. There was a defined benefit pension scheme attached to this post with a minimum pension age of 60 and a maximum pension age of 65. This pension scheme is a member of the Public Service Transfer Network (PSTN). It is submitted that the complainant has sought to transfer his service prior to 2002 to the Non-established pension scheme, but that this request was refused on the basis that the AVC is not transferable under the rules of the PSTN.
The respondent further submits that the PSTN was established to facilitate, principally, public service employees from moving from one public service organisation to another in allowing them to reckon all service for their later pension entitlements. The Secretarial Assistance scheme comes under the PSTN. The rules provide that service must follow in sequence, transferring from one body to another. Generally, transfers of service take place on a year-to-year basis known as “knock-for-knock”. The complainant was informed that he could use the value of the AVC to purchase service. At the time of the request, this would yield 1.3 years’ service in the Non-Established State Employees’ pension scheme. It is not permissible to transfer service from an AVC into a PSTN scheme and nor is it permissible to transfer in from a pension scheme outside of the PSTN.
The respondent outlines that the complainant’s employment prior to 2002 was separate from that between 2002 and 2007. It is submitted that he can cash in the AVC from the period between 1992 and 2002, but cannot transfer that service to the Non-Established Pension Scheme.
In correspondence of the 18th February 2014 exchanged by the respondent and the trade union, the respondent states that in July 2007 it was directed by the Department of Finance to transfer the printers to the Non-Established State Employees scheme. The correspondence states that the printers had two options: to transfer their service under the Secretarial Allowance scheme into the Non-Established scheme or to treat the two entitlements as separate. The complainant chose to keep the two entitlements as separate.
In respect of the senior official, the representatives of the respondent in attendance at the adjudication denied that he had made the undertakings attributed to him. They also said that he did not have the power to allow the service between 1992 and 2002 to be recognised.
Findings and reasoning:
The complainant is a printer and the respondent is a public body. The complainant states that he was given an undertaking at a time he was to be directly employed by the respondent that earlier years of service with a political party would transfer for pension purposes. The respondent denies the claim, stating that no such undertaking was given and such a transfer of service is not permissible. It states that the complainant can buy years in the pension scheme.
The first issue to address is the conflict of fact as to whether the senior official named by the complainant made the undertaking attributed to him. Having considered the written and oral evidence of the parties, I find as fact that the senior official of the respondent gave the undertaking as described by the complainant. This undertaking was given at a meeting where the printers met with the senior official as a group and also when the complainant signed the contract transferring his employment to the respondent. I reach this finding for the following reasons. First, the finding is based on the evidence given by the complainant at the adjudication. This is the strongest form of evidence as it can be probed by the other side and by the adjudicator. The complainant’s evidence is corroborated by the evidence of his colleague regarding undertakings given by the senior official which the colleague heard him say. It is further corroborated by the course of correspondence engaged by the complainant with the respondent and others where he seeks to have his service recognised. As best as they could at the adjudication, in the absence of the senior official, the representatives of the respondent denied that an undertaking was provided. Given the veracity of the evidence given by the complainant and corroborated by other sources, I make the finding that the respondent undertook to transfer the complainant’s service between 1992 and 2002 at the time of negotiations regarding the transfer of his employment to the respondent. I further find that the undertaking amounts to a misrepresentation issued by or on behalf of a public body and that this induced the complainant into agreeing to the terms of the new contract of employment. I find that he suffered the detriment as a result, in that he may have obtained a more advantageous outcome to his and his colleague’s negotiations.
The difficult aspect of this case is the appropriate redress. The complainant wishes for some or all of his years of service recognised and states that the necessary adjustments should be made to his pension. Earlier correspondence issued on his behalf refers to a lump sum payment as redress. The respondent refers to it not being permissible to include the service in question as part of the pension.
This is a dispute made pursuant to the Industrial Relations Acts. Addressing the nature of industrial relations claims in the case of a section 20 Labour Court investigation, Noonan J. in Mullally v the Labour Court  IEHC 351 held
“…it is in the nature of an industrial relations forum which is designed to facilitate the mediation of trade disputes and offer an opinion as to how such a dispute may be resolved. Its recommendation has no strictly legal effect but rather relies upon the moral authority of the expert statutory body from which it emanates. It does not give rise to justiciable rights.”
I am anxious that whatever redress recommended is not contra legem, i.e. recommends a course of action that is unlawful. Such a recommendation would be of little utility to the parties. In this regard, I am mindful of the High Court decision in the Minister for Education and Science v The Labour Court  IEHC 429 where O’Malley J. held
“However, I do not think that the jurisdiction to direct compliance with the terms of the [Employment Equality] Act can encompass ordering the Minister to admit the claimant to a particular statutory scheme, the terms of which set out qualifying conditions including what appear to be a requirement to pay contributions. This goes beyond ordering an employer to cease discriminating and comply with the Act, and I consider it to be ultra vires the powers of the Labour Court. It seems to me that the loss suffered by the claimant in these circumstances is more appropriately dealt with by way of compensation.”
At the outset, it is important to recognise that both the complainant and respondent are in sui generis positions. The complainant was sui generis as he was the only printer directly employed and paid by a political party; while the other printers were employed by their respective political parties, they were paid via the respondent Secretarial Allowance Scheme. The printers negotiated as a group regarding changes to their employment status. The respondent is a sui generis public body that was put on a stand-alone statutory basis in 2004. Its Secretarial Allowance Scheme is included in the Public Sector Transfer Network (PSTN) as is the pension scheme of a political party (although not the party the complainant worked for). During the course of their dealings, the respondent supplied the complainant with a list of the organisations who had (in September 2009) signed up to the PSTN. There are 180 organisations, or organisation types, listed, including agencies established by statute, limited companies receiving public funding, voluntary hospitals, schools and third level institutions. The PSTN is established pursuant to section 4 of the Superannuation and Pensions Act, 1963.
I have found as fact that the respondent, via the senior official designated to negotiate with the printers, made a representation to the complainant regarding the transfer of his service between 1992 and 2002. This communication was unqualified and unambiguous. It is clear that the complainant was disadvantaged by relying in the communication as he and his printer colleagues were in the process of negotiation, and had he known that the years would not be taken into account, these negotiations could have continued. I find that the respondent, via the senior official in question, made a negligent misrepresentation to the complainant.
Given the fact that the political party for whom the complainant worked was not a member of the PSTN, I do not think it possible to recommend that his years of pensionable service be adjusted to include the ten years in question. This might be contra legem. An alternative course would be to award the complainant redress in the form of damages. In the normal course, damages compensate a complainant to restore them to their position had it not been for the wrong done to them. I have regard to the approach of Kelly J. in Darlington v Meath County Council  IEHC 70 to awarding damages following a misrepresentation by a public body. In the instant case, the appropriate remedy is that the complainant be awarded the amount of compensation that allows him to purchase an amount of years of service in the pension scheme. I was not provided the actuarial data to allow me to specify such an amount of compensation. I appreciate that, given the calculation of the respondent that the complainant’s AVC would allow him purchase in the region of 1.3 years in the pension scheme, this will be a significant amount.
Having considered the possible outcomes outlined above, I propose the following redress be provided to the complainant. I recommend that the respondent pay to the complainant the amount equivalent to allow him purchase 7 years of service with the respondent Non-Established State Employees’ pension scheme, as compensation for the misrepresentation made to him by the respondent regarding the transfer of service for pension purposes. I believe that the purchase of 7 years of service is a fair outcome and the complainant acknowledged that he did not expect all ten years to be recognised. This redress is separate to any service the complainant might purchase via his AVC.
The Workplace Relations Act, 2015 and the Industrial Relations Acts require that I make a decision in relation to the above dispute. Pursuant to the findings outlined above, the respondent shall pay to the complainant the amount of compensation equivalent to the amount required for him to purchase 7 years of service with the respondent Non-Established State Employees’ pension scheme, as compensation for the misrepresentation made to him by the respondent regarding the transfer of service for pension purposes.
Dated: 4th August 2016