ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00020504
A Catering Assistant
Liam Allen SIPTU
Scott Jevons Ibec
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004,
Complaint seeking Adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act 1969
On 21 November 2019, during the hearing, the Union explained that the claim had been submitted under the incorrect legislation and requested to be heard under the Industrial Relations Act, 1969.
The Respondent, having prepared under the notified legislation of the Pensions Act was aggrieved at this development and took a break to consider the request.
The Respondent communicated that they were prepared to engage in a claim retitled under the Industrial Relations Act, 1969.
I considered both positions and accepted the Union withdrawal of the primary claim and accepted amended claim as a Dispute under Section 13 of the Industrial Relations Act, 1969. The hearing progressed in that vein.
Date of Adjudication Hearing: 21 November 2019 and 20 February 2020
Workplace Relations Commission Adjudication Officer: Patsy Doyle
In accordance with Section 13 of the Industrial Relations Acts 1969, following the referral of the dispute to me by the Director General, as amended on consent on 21 November 2019, 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.
This case concerns the repayment of temporary years pension contributions on behalf of a Hospital Catering Assistant represented by SIPTU.
The claim was disputed by the employer, who was represented by IBEC.
The case was heard over two days to permit the parties to engage in a retrospective analysis of how the complainants past service had been reconciled for pension purposes once her permanent appointment had been confirmed in 2002.
On 1 August 2019, I sought a written submission from the Union to assist in my investigation. Two adjourned dates followed before the first day of hearing in November 2019.
Both parties submitted written submissions accompanied by oral arguments. While both parties were keen to arrive at a mutually agreeable outcome, this did not materialise, and I have moved to considering if I can make a recommendation in the case.
Summary of Claimant’s Case:
The Claimant commenced employment in September 1989 as Catering Assistant. She worked on call for the first two years and afterwards commenced evening work 20-24 hrs per week. The Claimant has always practiced a good work ethic.
The claimant understood that work colleagues secured permanency and automatic enrolment in the pension scheme in 1996/7. The claimant was not a member of the pension scheme until she secured permanency in 2002, when membership became mandatory. This goes to the root of her case.
The claimant had a sense of being overlooked for permanency and raised the topic with her Union Representative and Line Management on several occasions in 1997 but failed to secure her permanency earlier than 2002. This period coincided with an absence of a Human Resources Dept at the Hospital.
The Union sought that the complainant should be compensated by means of the Hospital front loading the deficit in pension over the years 1996/7 to 2002.
The Hospital has already provided a costing report dated 12 August 2019 which provided 4 options to reckon a cumulative 5.1112 years’ service (14 September 1989 to 26 June 2002) at a cost of €3,288.74. +€644.11
The Union contended that the delay in offering permanency rested solely with the employer and the claimant was wrongly overlooked and wrongly excluded from the Occupational Pension Scheme before 2002.
The parties were given some time to explore what if any reconciliation process for past temporary service occurred in the claimant’s case. She had no recollection of this process.
Subsequently, the respondent advised that while the Organisation had administered Circular 23/2005, they did not have a file on the claimant’s inclusion in that administration.
This caused the Union to reflect further and by latter day submission contended that the claimant had an earlier permanency at the hospital 14 October 1989 to 5 October 1994, following which she reverted to temporary status. The claimant had not raised this over the course of the two days of discussion on this case.
The Union sought 12 calendar years of pension contributions and compensation to be 100% funded by the employer as restitution for the haphazard approach to record keeping by the Hospital
Summary of Employers’ Case:
The Employer operates a 900 employee Hospital as part of a larger Health service Grouping and is funded by Section 38 grant. The Employer submitted that they had no power to agree the proposed resolution offered by the claimant as they were bound by monthly account returns, which did not permit that level of flexibility.
In preparation for addressing the claim, the employer had identified that the hospital had confirmed permanent appointments at the Hospital in 1997 but none in 1996. They submitted that the complainant had been asked to provide documentary evidence of any documents she submitted at the point of grievance, but none were forthcoming.
The claimant was entered the Voluntary Hospital Superannuation Scheme on confirmation of permanency on 24 June 2002. Prior to this she had worked on a casual basis “if and when” 14 September -June 2002. Her hours varied 21-24 hrs during this time.
On 30 January 2018, the claimant first met with the employer and addressed her viewpoint that three name employees had been made permanent before her. she contended that she was overlooked and should now be compensated for this exclusion as she was unable to cover the cost of repaying her service for pension purposes. The employer was not able to concede this claim. Further engagement followed, and the employer set out the response date 21 June 2018.
“As discussed at our most recent meeting 22 May and 12 June, the temporary nature of the claimants post did not relate to her ability to join or pay into the pension scheme. I can confirm the legislation enacted to protect part time workers and the Circular supporting the inclusion of part time workers to pension schemes is the driver behind the claimant’s ability or otherwise to be included in the pension scheme “
The employer sought further details from the claimant, but nothing had arrived by November 2018.The complainant was offered an opportunity to “bank funds “locally to assist in her repayment of temporary service, however, the claimant had turned this down by saying that she was awaiting a calculation from the National Pension Centre.
The employer submitted that the complainant had not exhausted the grievance procedure in relation to her claim.
The Employer agreed to undertake a retrospective analysis on whether the claimant had been considered for past temporary service inclusion under the auspices of Circular 23/2005. In February 2020, they confirmed that the claimant had not been comprehended by that circular.
The Employer submitted that it was prepared to make an approach to the national pension service for the claimant to consider if any measure of support could be applied to this case.
On reading the Unions latter ay submission, the employer made the following response in summary.
Circular 11/96 did not green light the claimant’s membership in the pension scheme. The instruction to permit this was by way of Circular 64/2002. The employer had no knowledge of an earlier permanency and emphasised that the claimant had not disputed her temporary service details at either of the hearings.
The Claimant has not made out her case that some other employee was treated more favourably than her for.
The Employer disputed any liability for the claimant’s pension contributions as once entered the pension scheme in 2002, the claimant commenced mandatory payments in that regard. The claimant was aware that past service existed, and it was her responsibility to arrange a repayment plan like many other employees across the health service.
The Employer was opposed to the expansion of the claim from 1997 retrospectively to 1989 and recalled that this issue arose for the first time in 2018 and this should be borne in mind by the Adjudicator.
Findings and Conclusions :
I have listened carefully to both parties and I have considered both written and expanded submissions entered by the parties.
From the outset, I was struck by the generosity exhibited by the employer to respond to an amended claim. It was clear to me that the Hospital considered this a legacy issue and had no desire to bring conflict to a live and successful employment situation. However, they argued that they were bound by the rules of a national pension scheme and had no scope to alter those rules.
The Union on behalf of the claimant painted a picture of exclusion for the claimant in access to pay pension contributions much earlier than 2002 which was now causing the claimant some anxiety as she was expected to make good contributions for past service simultaneously with live contributions set against a part time finite salary. She contended that she deserved to have past service paid in full by the employer to allow her to focus on her retirement planning.
For my part, I was struck by the dearth in any records of the claimant’s employment service outside of those generated by the national pension service. This falls far short of best practice.
Having said that, the service records generated by the national pension service had informed a bill for past service of short of €4,000 which is accompanied with defined opportunities to repay prior to mid-2021.
The topic of pension is hugely important in a work setting. It covers the eventualities of life, death and illness. The claimant’s proximity to a state funded Occupational pension is a wonderful opportunity for her which deserves a careful and prudent management by both parties. Pension can frequently come into sharp focus in an employment setting earlier than either party could anticipate and it is good practice to have both sides contributions up to date.
The claimant carries a heightened sense of injustice that she was overlooked for permanency in 1996/1997 and because of this, she lost out on pension. I appreciate that she may have discussed this with various agents at union and management level at that time but there are no records of a procedural pathway or an adequate over view of comparators for me to consider. I find that that avenue is now self-defeating for the claimant as time has moved on.
I was keen to explore how both parties had reacted to the presence of a hugely important Circular 23/2005 which permitted a reconciliation of temporary service and full integration when it issued on 22 December 2005.?
It is important for me to reflect on section 40 of this Circular which firmly placed the prime responsibility for clarifying an employee’s entitlement to the benefits of the Circular on the employer. This allowed for a period of repayment for past service up to June 2008. There was also an opt out provision.
Section 21 of which sets out Access/Thresholds for Voluntary Hospital Superannuation Scheme for Non-Officers.
Both parties accept that the complainant was not considered under this Circular at the time. No reason was proffered by either party for this oversight, but for me this oversight goes to the root of the case.
I appreciate that the claimant has attributed her shortfall in pension service to an employer omission to regard her as permanent much earlier in her tenure. The Employer has disputed this, and I must accept this position as this submission from the claimant did not arise at hearing.
However, both parties are agreed that the claimant has a sizeable period of service not currently reckoned for superannuation purposes. This is an unenviable and vulnerable position for the claimant to be in in the face of any unexpected change in her circumstances and must be regulated to full and up to date membership of superannuation. It is important to reflect that the claimant is a part time worker.
I accept that the employer did not action its responsibilities under Circular 23/2005 and valuable deadlines for repayment by the complainant have passed by 12 years. She is now faced with a 2021 deadline for repayment of quoted service.
Both parties must accept a shared responsibility for this omission. The Circular was a ground-breaking circular issued in the aftermath of the Protection of Part Time Workers Act, 2001 and ought to have been embraced in real-time.
I find the actions of the employer to be unfair and unreasonable in this omission and I find the Hospital partly to blame. I note that the Hospital did not have the benefit of a defined HR department earlier in the process.
While I accept that the employer holds a view that the grievance procedure has not been exhausted in the case, the record now shows that the claim has been explored adequately by both parties.
As the parties continue to work together in a mutually respectful employment relationship, I find that compensation is the most appropriate recommendation I can make in the case which does not contravene the rules of the pension scheme.
I have found merit in this dispute.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I have found merit in the dispute and recommend that the employer pay the claimant €2,000 in compensation for the omission in the application of Circular 23/2005 at the Hospital. This award should be balanced against the claimant’s current past service superannuation bill with whatever revenue credits follow in the circumstances.
I also recommend that the claimant prioritise payment arrangements for this past service to her benefit.
I make this recommendation on a strictly individualised basis and it does constitute a precedent.
I conclude by once again acknowledging the care and attention applied by both parties to this case and the generosity of the employer to agree to an amendment to the claim form.
Dated: 16th June 2020
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Reconciliation of past temporary service for Occupational Pension Scheme