FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : IARNROD EIREANN - IRISH RAIL - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms Treacy |
1. An appeal of an Adjudication Officer's Recommendation No. ADJ-00018414.
BACKGROUND:
2. This case is an appeal of an Adjudication Officer’s Recommendation by the Worker. On the 5 June 2019 the Adjudication Officer issued the following Recommendation:-
- “I recommend that the Company should provide the Complainant with a PRSA that will provide comparable benefits to those that the Complainant would receive had she been so admitted to the Company Pension Scheme. The Complainant must contribute to the PRSA in the same amount as she would have been required to contribute had she been admitted to the Pension Scheme and the Company to contribute the balance required to generate benefits comparable to those to which she would otherwise have been entitled under the Company Pension Scheme. The retrospective amount due from the Complainant should be paid over a period of time to be agreed between the parties, but I would recommend a repayment period of not less than three years, or such other time as the parties may agree.”
A Labour Court hearing took place on 19 November 2019.
DECISION:
This is an appeal by the employer of an Adjudication Officer’s Recommendation in a claim by a worker to be retrospectively included in the Company’s ”Pension Scheme for Regular Wages Staff” (the Scheme). The worker has been employed as a Resident Level Crossing Keeper with the Company since 1989 and was appointed in May 1997.
The Claimant maintained that she was always a member of the pension scheme and only discovered that she was not a member in 2014, when she applied for voluntary severance.
The Claimant became ineligible to join the Scheme because of her age on 13thMarch 2019. The Union on behalf of the Claimant said that every effort was made to seek information before March 2019 to allow her to join the Scheme. In July 2003 a notice was issued advising Resident Crossing Keepers that they could join the Scheme and qualify for a pension on retirement, this provided a once off option to join. The Claimant said that she did not receive this notice, she made an access request for information however, there is no record of any offer or details of arrears to be paid, on record.
The Union are now seeking the Company to contribute to a Personal Retirement Savings Account (PRSA) for the Claimant, to provide a pension equal to that which she would be entitled to on retirement had she been in the Scheme.
The Scheme is governed by Statutory Instrument 93/2001. In June 2003 the Company and the Trade Unions agreed a “New Deal” for Resident and Non-Resident Level Crossing Keepers, this deal clearly stated that the rules were those specified in the Statutory Instrument. The Claimant did not join the Scheme by the closing date on 1stAugust 2004. The Company said that the pension option formed a major element of the New Deal for Crossing Keepers that was balloted upon by the Crossing Keepers and accepted. Two notices were issued regarding the option to join the Scheme, in July 2003 and May 2004. This required accumulated arrears of contributions to be paid (€2,518.42 on average) back to 28 April 1995 - the operative date of S.I. 93/2001.
The Company stated that it is precluded by virtue of S.I. 93/2001 from entering the Claimant into the Scheme now.
Having considered the oral and written submissions of both parties the Court notes that the “New Deal” for Resident and Non-Resident Level Crossing Keepers 2003 was a major agreement at the time which included many benefits for those encompassed by the deal, including entry for the first time into the Company’s pension scheme. To join the Scheme, Crossing Keepers were required to opt into the Scheme, undertake a medical examination and pay arears of contributions. Sixty of the sixty-two Crossing Keepers opted into the Scheme. Under those circumstances, the Court finds it improbable that (i) the Claimant was not aware of the entry requirements to join the Scheme; (ii) she thought she was entered into the Scheme automatically and (iii) she did not realise that contributions were not deducted either from her wages or made by the Company.
In all the circumstances, the Court is of the view that the Claimant failed to join the Scheme by the closing date in August 2004 and therefore cannot find in favour of the Claimant’s claim. The Court overturns the Adjudication Officer’s Recommendation and upholds the Company’s appeal.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
04 December, 2019Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.