ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00003502
Complaint(s)/Dispute(s) for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 19/09/2016
Workplace Relations Commission Adjudication Officer: Michael McEntee
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and or section 13 of the Industrial Relations Act, 1969 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Attendance at Hearing:
Complainant’s Submission and Presentation:
When I was confirmed into my permanent position as a Care Assistant it was put in writing that because I was permanent it was obligatory that I join the Nominated Health Agency Superannuation Scheme. I understood that this is the scheme I was in the same as my colleagues. I discovered some time ago that I had been placed incorrectly into a different scheme, many efforts have been made to resolve this issue however I remain in the wrong scheme. I am seeking the assistance of the adjudication services to resolve this matter.
Respondent’s Submission and Presentation:
The Respondent is an Agency funded by the HSE/Dept. of Health.
On appointment in February 1999 the Complainant was placed in the Irish Pension Trust Pension Scheme. However her letter of Appointment refers to her joining the NHAS (Nominated Health Agency Superannuation Scheme) Scheme.
It is at this temporal remove unclear why this happened. There may have been some misunderstanding at Administrative level at that time in regard to employees funded via Section 65 ( Non Core)and Section 38 ( Core Funding ) of the then Health Act
On the Complaint becoming aware of this situation in circa 2010, following the FEMPI Act of 2009, and the introduction of a Pension Related Deduction, which was applied to the Complainant, the Respondent queried her case with the Department of Health.
It appears that the Complainant is one of 16 colleagues in this situation.
The matter was the subject of considerable correspondence (cited in evidence).
A definitive ruling on the mater was issued by the Department of Health on the 26th February 2014. This ruling precluded the Respondents from allowing the Complainant enter the NHAS Scheme.
The Respondent is accordingly not in a position to respond favourably to this claim.
Section 41(4) of the Workplace Relations Act 2015 and or Section 13 of the Industrial Relations Act, 1969 require that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.
Issues for Decision:
Has the Complainant a well founded case to be allowed transfer, with retrospection to her date of appointment, to the NHAS Scheme?
Legislation involved and requirements of legislation:
Industrial Relations Act, 1969
The facts of the case are that
1: The Complainant’s letter of Appointment from 23rd February 1999 grants her access to the NHAS Scheme
2: No evidence was presented of this letter being withdrawn or amended at that time or subsequently. Inquiries by the Respondent regarding decisions in 1999 were unable to establish a clear picture of the rational for the letter of offer and subsequent practical implementation being at odds. The argument vis a via Section 65 as against Section 38 funding of individual staff posts was ,it appeared from the oral evidence , very arbitrary indeed at that time i.e. 1999, in so far as the Respondent could establish at this temporal remove.
I noted that the Complainant had one other colleague in this situation of contradictory letter and practical implementation.
3: The Complainant was placed in the IPT (Irish Pensions Trust) Scheme in 1999 and remains so to date. There was a tacit argument in the Department of Health correspondence (main letter of the 26th February 2014) that her membership of the IPT Scheme for the last 17 years created a type of Status Quo acceptance. This is referred to in the Department’s letter as the “you have what you hold principle”.
A common understanding of this principle is that it was intended to protect staff that might have higher or more advantageous benefits not staff such as the Complainant who are seriously disadvantaged by the non inclusion in the NHAs Scheme.
4: Accordingly and in conclusion, having read the correspondence and heard the oral evidence I recommend that the letter of offer of 23rd February 1999 be implemented in full. The Complainant is to be offered membership of the NHAS Scheme retrospective to that date. Her IPT benefits to transfer to the NHAS Scheme.
Obviously an actuarial exercise my have to be carried out as to the Transfer value to the NHAS Scheme of her existing IPT Scheme benefits.
Dated: 5 January 2017