Complainant

Respondent

Parties

Mathew  Varghese

Health Service Executive Our Lady Of Lourdes Hospital

Complainant

Respondent

Anonymised Parties

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Representatives

Aidan O' Reilly Irish Hospital Consultants Association

Eamonn Ross Health Service Executive

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00064823-001

17/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00064823-002

19/07/2024

The complainant submits he is a fixed-term employee and/or an agency worker he was treated less favourably than a comparable permanent employee.

The complaint challenges a decision by his employer to enrol him into the Single Public Service Pension Scheme (SPSPS) with effect from 06/07/2015. The SPSPS was introduced in January 2013 by way of the Public Service Pensions (Single Scheme and Other Provisions) Act 2012 (hereinafter referred to as “the Act of 2012”) and, subject to certain exceptions, it is the main pension scheme that applies to new appointees in the public service after that date. It is Dr Varghese’s position that he was, as a fixed-term employee and in respect of his conditions of employment, treated less favourably than a comparable permanent employee and/or that he was an agency worker and did not receive the same basic working and employment conditions to which a comparable worker would be entitled. He submits he not have been enrolled in the SPSPS and instead should have been maintained as a member of his pre-2013 superannuation scheme which offers relatively more favourable benefits having regard to pension and lump sum. 

The term ‘new entrant’ has two separate meanings in the context of salary arrangements as distinct from superannuation arrangements. In terms of salary, Consultants appointed after 01/10/2002 with some limited exceptions, are treated as new entrants for salary purposes (“post-2012 new entrants”) and are remunerated in accordance with a salary scale that offers lower salary levels compared with those offered to Consultants appointed before that date (“pre-2012 non-new entrants”).   In terms of superannuation, Consultants appointed after 01/01/2013 with some limited exceptions, are treated as new entrants for superannuation purposes and are enrolled into the Single Public Service Pension Scheme (SPSPS) which offers less favourable superannuation benefits compared with those offered to Consultants appointed before that date who are typically enrolled into the Local Government Superannuation Scheme, Health Service Executive Superannuation Scheme, Voluntary Hospitals Superannuation Scheme, or Nominated Health Agencies Superannuation Scheme (“the pre-2013 Schemes”).

The complainant has been continuously employed in the public health service since July 2003. In January 2011, he commenced employment in OLOL Drogheda. At that time, he maintained his pre-2013 non-new entrant status for superannuation purposes and was enrolled in the appropriate pre-2013 Scheme. This arrangement pertained up until June 2013. Dr Varghese advises that Ms Deirdre Dineen, Medical Manpower Manager in the hospital communicated with him that, if a contract for his direct employment by the hospital was renewed with effect from 01/07/2013 he would be deemed a post-2012 new entrant for salary purposes and effectively suffer a 30% reduction in salary as a consequence of the new entrant salary scale of 01/10/2012 being applied to him. He was therefore encouraged to continue to work for the hospital but provide his services through a locum agency in order to avoid a significant drop in his remuneration. Dr Varghese advises that he subsequently learned that not all hospitals adopted the same policy and that locum Consultants working in other hospitals were retained on new contracts in circumstances where the 01/10/2012 new entrant reduced salary scale was not applied to them. With effect from 01/07/2013 to 05/07/2015 Dr Varghese continued to work for the hospital but was remunerated through a locum agency (hereinafter referred to as “the locum agency period”).  Throughout this time, there was no change to Dr Varghese’s duties or responsibilities and he continued to work for the hospital in the same fashion as had previously pertained when he was employed directly by the hospital under a contract of employment.

Dr Varghese advises that his circumstances came to the attention of the CEO of the HSE in June 2015 and that an instruction was issued to the effect that he should be employed directly by the hospital with effect from 06/07/2015, further, that he be treated as a pre-2012 non-new entrant for salary purposes. That is to say, he was not to be placed on the 01/10/2012 new entrant reduced salary scale and he would not suffer a salary reduction. Furthermore, Dr Varghese was employed under a Contract of Indefinite duration from that date.

In granting Dr Varghese a contract of indefinite duration, the hospital effectively recognized that the locum agency period constituted a period of direct employment with the hospital for the purpose of satisfying the four year threshold under the fixed term workers legislation. This is important because, in the context of his superannuation status, the hospital has taken a position that the locum agency period constituted a break in service of greater than 26 weeks such that the hospital was, from its perspective, justified in enrolling Dr Varghese in the SPSPS instead of maintaining him in his pre-2013 superannuation scheme.

It is Dr Varghese’s position that he should have maintained his pre-2013 superannuation status throughout the entire period commencing from January 2011 to present as he was a direct employee, or de facto a direct employee, of the hospital, and/or that he continued to serve in a public service body throughout and he should have been facilitated in making superannuation contributions into the pre-2013 scheme from that time up until the present day and/or he was, as a fixed-term employee and in respect of his conditions of employment, treated less favourably than a comparable permanent employee and/or that he was an agency worker and did not receive the same basic working and employment conditions to which a comparable worker would be entitled.. Instead, Dr Varghese was incorrectly enrolled in the Single Public Service Pension Scheme with effect from 6th July 2015. In addition, Dr Varghese advises that he was not fully advised by the HSE Pensions Office as to the impact that the change in his employment arrangements would have on his preserved benefits, in particular that this would negatively affect his entitlement to an award of Professional Added Years in respect of service accrued by him under the pre-2013 scheme.

It is submitted therefore that an employment relationship existed between him and the hospital during this period since (a) there was mutuality of obligations; (b) Dr Varghese was subject to the direction of the hospital in his employment at all times; and (c) his role, duties and responsibilities did not change relative to the period immediately preceding when he was employed under a direct contract of employment. The hospital has recognised there was a direct employment relationship with Dr Varghese during the Locum Agency period by its actions in granting a contract of indefinite duration. The respondent recognizes for salary purposes that he is a pre-2012 non-new entrant on the one hand, but post-January 2013 for superannuation purposes on the other. He should have been facilitated in continuing to make superannuation contributions from July 2013 onwards into his pre-2013 superannuation scheme. He should have remained enrolled in the pre-2013 superannuation scheme at that time rather than the SPSPS.

Case law cited included Diageo Global Supply –v- Mary Rooney Determination No. PTD042, January 15, 2004,  Ready-Mixed Concrete (South East) Ltd v Minister for Pensions and National Insurance[1] [1968] 2 Q.B. 497  Enterprise Ireland v. Irene McMahon ADE/06/22 Determination No. 0710, Moran v EAT [2014] IEHC 154, Health Service Executive v McDermott [2014] IEHC 331

Time Limits

In response to the submission by the respondent that the complaint is out of time the complainant received his first notification of pension benefits under the Single Public Service Pension Scheme (SPSPS) in November 2019 and it became apparent to him that he had been disadvantaged compared with permanent colleagues, that his employer had incorrectly enrolled him in the scheme and that there were grounds upon which he could challenge that decision. Shortly thereafter, he started to make enquiries with his employer on the issue. It is simply not the case that he sat idly by. His early efforts and those subsequently of the IHCA to resolve matters through the usual employment channels took some considerable time and were pursued to demonstrate that all local avenues had been exhausted before referring the matter to the WRC. The date upon which the final decision in the matter, and therefore the key date for the purpose of the six month time limit, was 22/01/2024 when the Assistant National Director of HR, wrote to the IHCA to confirm that all internal avenues had been exhausted in relation to the dispute.  Dr Varghese’s complaints under the fixed term workers and agency workers legislation were subsequently submitted on 17th and 18th July 2024 respectively and therefore within the six month time limit.

By letter dated 6th December 2011, Dr Varghese’ contract was extended to 8th July 2012 and it was confirmed “Your contract is a fixed term contract”. By letter dated 28th June 2012, Dr Varghese’ contract was extended to 28th December 2012 and it was confirmed “Your contract is a fixed term contract”. By letter dated 24th December 2012, Dr Varghese’ contract was extended to 30th June 2013 and it was confirmed “Your contract is a fixed term contract”.   On any objective analysis, and having regard to the correspondence outlined above, there can be no other conclusion but that Dr Varghese was a fixed term employee within the meaning of the 2003 Act at during the relevant periods.

Without prejudice to the above the Respondent has asserted without evidence that “the Complainant does not meet the statutory definition of an “agency worker” within the meaning ascribed to the applicable legislation. Dr Varghese was an agency worker within the meaning of the 2012 Act. The Respondent has provided no evidence to the contrary and its claim that Dr Varghese was not an agency worker is spurious and entirely without basis.

Dr Varghese’s complaint, inter alia, is that he was treated less favourably than a comparable permanent employee insofar as a permanent colleague would not have been encouraged to provide their services via a locum agency, thereby placing themselves at a disadvantage, incurring a break in service and ultimately subjected to enrolment by their employer in the SPSPS. It is Dr Varghese’s position that he was as an agency worker treated less favourably compared with a comparable permanent employee insofar he was deemed to have incurred a break in service that impacted on his continued enrolment in the relevant pre-2013 pension scheme. A permanent colleague would not have been placed at the same disadvantage as Dr Varghese. A permanent colleague would not have been deemed to have incurred a break in service and they would not ultimately have been enrolled by the employer in the SPSPS. The Respondent has correctly asserted that Dr Varghese has been employed on a permanent basis by the Respondent since 2015. However, the Respondent appears to be asserting that the contemporaneous status of Dr Varghese as a permanent employee now precludes him from submitting a claim under relevant legislation relating to a breach of his statutory entitlements during a prior period of fixed term and/or agency employment. Dr Varghese’s complaint and the underlying breaches that occurred cannot be assessed or viewed through the prism of Dr Varghese’s current day employment status as a permanent employee. His complaints can only be properly assessed and interrogated by reference to his employment status at the relevant time, namely the period January 2011 to July 2015 when he was employed initially on a fixed term basis and later as an agency worker.

Evidence of Complainant:

The complainant said his last fixed term contract was June 2013 and that he was told he would be a new entrant salary and he told them he could not take this role with a lower salary and he was told that he could become an agency worker.  The agency details were communicated to him on a phone call when Ms Dineen called him about the new entrant salary or he could go through an agency.  He was not advised of the implications with SPSP.  The salary with the agency was more favourable than the salary as a new entrant.  He then was contacted about why he was working with the agency and the complainant explained about his salary would be reduced and he was told by the CEO that he could get his old salary back if he came back as an employee.  When he got the contract of indefinite duration he contacted pensions who told him he was in the SPS and he did not know about the difference and thought his pension would be the old pension.  He had been told about the different pensions in 2019 but did not understand the implications of this.  It was his hope this matter would be resolved internally.

Under cross examination the complainant said he was aware in 2012 that there would be a reduction in salary under the new contracts.  He was not told to go to agency but was told he could come back as an employee and that she had suggested he go to the agency.  It would be a new entrants salary and it would be reduced.  There was a discussion with her and it was a choice given and he was on a high salary and it would be reduced to a lower salary and he made contract with an agency.  He said when she suggested an agency and other doctors were working with this agency and he got details from other doctors and the rate was 95 euro per hour which he chose to take and he made that choice.

Under redirect he confirmed that Ms Dineen called him and said his contract with the respondent would be at the lower salary or he could come through as an agency worker and he did not know about single pensions and their implications and he told Ms Dineen that he could not take a salary that was less and he was not aware of matters regarding the pension.  When he told the CEO the reason he was on the contract the CEO said that he would get my old salary back.  When he worked as an agency worker he was told he had more than 26 broken weeks and when he got the CID he contacted pension and was told about the SPSC and that he was in the SPS and wrote to the pensions organisation  and hoped it could be resolved internally.

The respondent refutes the complainant’s submission and submits that the complaint has been dealt with through internal procedures and the complainant can pursue further to the Ombudsman.

Preliminary Issue:

The respondent submits that the complaints are out of time.  The complaints occurred over 9 years ago and is outside statutory time limits.  While where reasonable cause can be demonstrated, this time can be extended but the claim falls outside this time limit also.  The complainant does not have locus standi as he was not a fixed term employee during the cognisable period.  Since 2015 the complainant has been an employee of the respondent and holds a contract as a Consultant Paediatrician. The complainant had been a fixed term employee from January 2011 till July 2013.

On 01/10/2012 a revised salary scale for newly appointed consultants was introduced and applied to new entrants from that date.  In July 2013 the complainant declined the opportunity to extend his fixed term engagement with the respondent and chose to register with a third party agency from June 2013 till July 2015.  This was not uncommon and in July 2015 he was offered a permanent position and he accepted this.  In or around November 2021  six years after entering employment he raised a concern about pension entitlements.  He had submitted he had been erroneously enrolled in a single public service pension scheme with a loss of pension entitlements.  There was extensive correspondence between the parties.  On 22/01/2024 the complainant was advised that all avenues internally had been exhausted and that between 2013 and 2015 the complainant did not have an employment relationship with the respondent.

The complainant does not fall within the Fixed Term Work legislation as the complainant was not on a fixed term employee contract as since 2015 he has been a permanent employee.

Without prejudice the complainant was not treated less favourably.  The complaints are misplaced and irrelevant.  The complaints are out of time and the complainant lacks locus standi to proceed and without prejudice the complainant was not treated to less favourable treatment at any stage during his time as a fixed term worker, following his voluntary resignation or as a current permanent member of staff. It is not of relevance to this complaint why the complainant was later offered a contract of indefinite duration by the CEO at the salary that he was offered.

Evidence of Ms Dineen

She was medical manpower manager dealing with consultant application appointment and in 2012 the existing consultants were to get a 30% salary decrease.  She phoned all the impacted consultants including the complainant and explained this to them and did not advise any of them to join an agency.  She felt people were better staying on HSE contracts as there were more benefits with them and the complainant was offered an extension of his contract.

Under cross examination she outlined she would not have known what salary he would have received if he went working with the agency.  The reason people were offered a contract of indefinite duration was because of the expense involved with agency.  She did not know why the CEO at the time offered a permanent contract to the complainant on his previous salary and was dumbfounded as she was not aware of any guidelines or circular that allowed for this at the time.

The complainant submits that he should not have been enrolled into the Single Public Service Pension Scheme (SPSPS) with effect from 06/07/2015 and as fixed term worker was treated less favourably than a comparable permanent employee in terms of his conditions of employment.  The respondent submits that the complaint is out of time as the complainant has not been a fixed term worker since 2013 and without prejudice the respondent refutes the claims.

Preliminary Issue #1 Time Limits:

The respondent submits that the complaint is out of time which the complainant refutes.

Section 6 & Section 8 provides that:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

It was not in dispute that the complainant was a fixed term worker from January 2011 to July 2015 and that he was engaged as an agency worker from 01/07/2013 to 05/07/2015 through a locum agency and that he secured a contract of indefinite duration on 06/07/2015.  It was also not in dispute that the complainant was aware that this contract of indefinite duration warranted a different pension scheme from certainly 2019 if not before that.  While I note his submission that that the complainant secured a pre-2012 non-new entrant salary with an apparently different superannuation applied,  it would appear that he was aware of the superannuation applying at the time and was certainly aware of it in 2019 and his claim is therefore manifestly out of time and there would not appear to be any provision within the legislation to extend the 12 months provided for under the Act even with “reasonable cause”.

I find that in all the circumstances that the complaint was presented outside of the statutory time limit and that I have no jurisdiction to hear the complaint and that the complaint is not well founded.

The complaint challenges a decision by his employer to enrol him into the Single Public Service Pension Scheme (SPSPS) with effect from 06/07/2015. The SPSPS was introduced in January 2013 by way of the Public Service Pensions (Single Scheme and Other Provisions) Act 2012 (hereinafter referred to as “the Act of 2012”) and, subject to certain exceptions, it is the main pension scheme that applies to new appointees in the public service after that date. It is Dr Varghese’s position that he was, as a fixed-term employee and in respect of his conditions of employment, treated less favourably than a comparable permanent employee and/or that he was an agency worker and did not receive the same basic working and employment conditions to which a comparable worker would be entitled. He submits he not have been enrolled in the SPSPS and instead should have been maintained as a member of his pre-2013 superannuation scheme which offers relatively more favourable benefits having regard to pension and lump sum. 

The term ‘new entrant’ has two separate meanings in the context of salary arrangements as distinct from superannuation arrangements. In terms of salary, Consultants appointed after 01/10/2002 with some limited exceptions, are treated as new entrants for salary purposes (“post-2012 new entrants”) and are remunerated in accordance with a salary scale that offers lower salary levels compared with those offered to Consultants appointed before that date (“pre-2012 non-new entrants”).   In terms of superannuation, Consultants appointed after 01/01/2013 with some limited exceptions, are treated as new entrants for superannuation purposes and are enrolled into the Single Public Service Pension Scheme (SPSPS) which offers less favourable superannuation benefits compared with those offered to Consultants appointed before that date who are typically enrolled into the Local Government Superannuation Scheme, Health Service Executive Superannuation Scheme, Voluntary Hospitals Superannuation Scheme, or Nominated Health Agencies Superannuation Scheme (“the pre-2013 Schemes”).

The complainant has been continuously employed in the public health service since July 2003. In January 2011, he commenced employment in OLOL Drogheda. At that time, he maintained his pre-2013 non-new entrant status for superannuation purposes and was enrolled in the appropriate pre-2013 Scheme. This arrangement pertained up until June 2013. Dr Varghese advises that Ms Deirdre Dineen, Medical Manpower Manager in the hospital communicated with him that, if a contract for his direct employment by the hospital was renewed with effect from 01/07/2013 he would be deemed a post-2012 new entrant for salary purposes and effectively suffer a 30% reduction in salary as a consequence of the new entrant salary scale of 01/10/2012 being applied to him. He was therefore encouraged to continue to work for the hospital but provide his services through a locum agency in order to avoid a significant drop in his remuneration. Dr Varghese advises that he subsequently learned that not all hospitals adopted the same policy and that locum Consultants working in other hospitals were retained on new contracts in circumstances where the 01/10/2012 new entrant reduced salary scale was not applied to them. With effect from 01/07/2013 to 05/07/2015 Dr Varghese continued to work for the hospital but was remunerated through a locum agency (hereinafter referred to as “the locum agency period”).  Throughout this time, there was no change to Dr Varghese’s duties or responsibilities and he continued to work for the hospital in the same fashion as had previously pertained when he was employed directly by the hospital under a contract of employment.

Dr Varghese advises that his circumstances came to the attention of the CEO of the HSE in June 2015 and that an instruction was issued to the effect that he should be employed directly by the hospital with effect from 06/07/2015, further, that he be treated as a pre-2012 non-new entrant for salary purposes. That is to say, he was not to be placed on the 01/10/2012 new entrant reduced salary scale and he would not suffer a salary reduction. Furthermore, Dr Varghese was employed under a Contract of Indefinite duration from that date.

In granting Dr Varghese a contract of indefinite duration, the hospital effectively recognized that the locum agency period constituted a period of direct employment with the hospital for the purpose of satisfying the four year threshold under the fixed term workers legislation. This is important because, in the context of his superannuation status, the hospital has taken a position that the locum agency period constituted a break in service of greater than 26 weeks such that the hospital was, from its perspective, justified in enrolling Dr Varghese in the SPSPS instead of maintaining him in his pre-2013 superannuation scheme.

It is Dr Varghese’s position that he should have maintained his pre-2013 superannuation status throughout the entire period commencing from January 2011 to present as he was a direct employee, or de facto a direct employee, of the hospital, and/or that he continued to serve in a public service body throughout and he should have been facilitated in making superannuation contributions into the pre-2013 scheme from that time up until the present day and/or he was, as a fixed-term employee and in respect of his conditions of employment, treated less favourably than a comparable permanent employee and/or that he was an agency worker and did not receive the same basic working and employment conditions to which a comparable worker would be entitled.. Instead, Dr Varghese was incorrectly enrolled in the Single Public Service Pension Scheme with effect from 6th July 2015. In addition, Dr Varghese advises that he was not fully advised by the HSE Pensions Office as to the impact that the change in his employment arrangements would have on his preserved benefits, in particular that this would negatively affect his entitlement to an award of Professional Added Years in respect of service accrued by him under the pre-2013 scheme.

It is submitted therefore that an employment relationship existed between him and the hospital during this period since (a) there was mutuality of obligations; (b) Dr Varghese was subject to the direction of the hospital in his employment at all times; and (c) his role, duties and responsibilities did not change relative to the period immediately preceding when he was employed under a direct contract of employment. The hospital has recognised there was a direct employment relationship with Dr Varghese during the Locum Agency period by its actions in granting a contract of indefinite duration. The respondent recognizes for salary purposes that he is a pre-2012 non-new entrant on the one hand, but post-January 2013 for superannuation purposes on the other. He should have been facilitated in continuing to make superannuation contributions from July 2013 onwards into his pre-2013 superannuation scheme. He should have remained enrolled in the pre-2013 superannuation scheme at that time rather than the SPSPS.

Case law cited included Diageo Global Supply –v- Mary Rooney Determination No. PTD042, January 15, 2004,  Ready-Mixed Concrete (South East) Ltd v Minister for Pensions and National Insurance[2] [1968] 2 Q.B. 497  Enterprise Ireland v. Irene McMahon ADE/06/22 Determination No. 0710, Moran v EAT [2014] IEHC 154, Health Service Executive v McDermott [2014] IEHC 331

Time Limits

In response to the submission by the respondent that the complaint is out of time the complainant received his first notification of pension benefits under the Single Public Service Pension Scheme (SPSPS) in November 2019 and it became apparent to him that he had been disadvantaged compared with permanent colleagues, that his employer had incorrectly enrolled him in the scheme and that there were grounds upon which he could challenge that decision. Shortly thereafter, he started to make enquiries with his employer on the issue. It is simply not the case that he sat idly by. His early efforts and those subsequently of the IHCA to resolve matters through the usual employment channels took some considerable time and were pursued to demonstrate that all local avenues had been exhausted before referring the matter to the WRC. The date upon which the final decision in the matter, and therefore the key date for the purpose of the six month time limit, was 22/01/2024 when the Assistant National Director of HR, wrote to the IHCA to confirm that all internal avenues had been exhausted in relation to the dispute.  Dr Varghese’s complaints under the fixed term workers and agency workers legislation were subsequently submitted on 17th and 18th July 2024 respectively and therefore within the six month time limit.

By letter dated 6th December 2011, Dr Varghese’ contract was extended to 8th July 2012 and it was confirmed “Your contract is a fixed term contract”. By letter dated 28th June 2012, Dr Varghese’ contract was extended to 28th December 2012 and it was confirmed “Your contract is a fixed term contract”. By letter dated 24th December 2012, Dr Varghese’ contract was extended to 30th June 2013 and it was confirmed “Your contract is a fixed term contract”.   On any objective analysis, and having regard to the correspondence outlined above, there can be no other conclusion but that Dr Varghese was a fixed term employee within the meaning of the 2003 Act at during the relevant periods.

Without prejudice to the above the Respondent has asserted without evidence that “the Complainant does not meet the statutory definition of an “agency worker” within the meaning ascribed to the applicable legislation. Dr Varghese was an agency worker within the meaning of the 2012 Act. The Respondent has provided no evidence to the contrary and its claim that Dr Varghese was not an agency worker is spurious and entirely without basis.

Dr Varghese’s complaint, inter alia, is that he was treated less favourably than a comparable permanent employee insofar as a permanent colleague would not have been encouraged to provide their services via a locum agency, thereby placing themselves at a disadvantage, incurring a break in service and ultimately subjected to enrolment by their employer in the SPSPS. It is Dr Varghese’s position that he was as an agency worker treated less favourably compared with a comparable permanent employee insofar he was deemed to have incurred a break in service that impacted on his continued enrolment in the relevant pre-2013 pension scheme. A permanent colleague would not have been placed at the same disadvantage as Dr Varghese. A permanent colleague would not have been deemed to have incurred a break in service and they would not ultimately have been enrolled by the employer in the SPSPS. The Respondent has correctly asserted that Dr Varghese has been employed on a permanent basis by the Respondent since 2015. However, the Respondent appears to be asserting that the contemporaneous status of Dr Varghese as a permanent employee now precludes him from submitting a claim under relevant legislation relating to a breach of his statutory entitlements during a prior period of fixed term and/or agency employment. Dr Varghese’s complaint and the underlying breaches that occurred cannot be assessed or viewed through the prism of Dr Varghese’s current day employment status as a permanent employee. His complaints can only be properly assessed and interrogated by reference to his employment status at the relevant time, namely the period January 2011 to July 2015 when he was employed initially on a fixed term basis and later as an agency worker.

Evidence of Complainant:

The complainant said his last fixed term contract was June 2013 and that he was told he would be a new entrant salary and he told them he could not take this role with a lower salary and he was told that he could become an agency worker.  The agency details were communicated to him on a phone call when Ms Dineen called him about the new entrant salary or he could go through an agency.  He was not advised of the implications with SPSP.  The salary with the agency was more favourable than the salary as a new entrant.  He then was contacted about why he was working with the agency and the complainant explained about his salary would be reduced and he was told by the CEO that he could get his old salary back if he came back as an employee.  When he got the contract of indefinite duration he contacted pensions who told him he was in the SPS and he did not know about the difference and thought his pension would be the old pension.  He had been told about the different pensions in 2019 but did not understand the implications of this.  It was his hope this matter would be resolved internally.

Under cross examination the complainant said he was aware in 2012 that there would be a reduction in salary under the new contracts.  He was not told to go to agency but was told he could come back as an employee and that she had suggested he go to the agency.  It would be a new entrants salary and it would be reduced.  There was a discussion with her and it was a choice given and he was on a high salary and it would be reduced to a lower salary and he made contract with an agency.  He said when she suggested an agency and other doctors were working with this agency and he got details from other doctors and the rate was 95 euro per hour which he chose to take and he made that choice.

Under redirect he confirmed that Ms Dineen called him and said his contract with the respondent would be at the lower salary or he could come through as an agency worker and he did not know about single pensions and their implications and he told Ms Dineen that he could not take a salary that was less and he was not aware of matters regarding the pension.  When he told the CEO the reason he was on the contract the CEO said that he would get my old salary back.  When he worked as an agency worker he was told he had more than 26 broken weeks and when he got the CID he contacted pension and was told about the SPSC and that he was in the SPS and wrote to the pensions organisation  and hoped it could be resolved internally.

The respondent refutes the complainant’s submission and submits that the complaint has been dealt with through internal procedures and the complainant can pursue further to the Ombudsman.

Preliminary Issue:

The respondent submits that the complaints are out of time.  The complaints occurred over 9 years ago and is outside statutory time limits.  While where reasonable cause can be demonstrated, this time can be extended but the claim falls outside this time limit also.  The complainant does not have locus standi as he was not an agency worker during the cognisable period. 

Since 2015 the complainant has been an employee of the respondent and holds a contract as a Consultant Paediatrician. The complainant had been a fixed term employee from January 2011 till July 2013.  On 01/10/2012 a revised salary scale for newly appointed consultants was introduced and applied to new entrants from that date.  In July 2013 the complainant declined the opportunity to extend his fixed term engagement with the respondent and chose to register with a third party agency from June 2013 till July 2015.  This was not uncommon and in July 2015 he was offered a permanent position and he accepted this.  In or around November 2021  six years after entering employment he raised a concern about pension entitlements.  He had submitted he had been erroneously enrolled in a single public service pension scheme with a loss of pension entitlements.  There was extensive correspondence between the parties.  On 22/01/2024 the complainant was advised that all avenues internally had been exhausted and that between 2013 and 2015 the complainant did not have an employment relationship with the respondent.

The complainant does not fall within the temporary agency workers legislation as the complainant was not a temporary agency worker as since 2015 he has been a permanent employee.

Without prejudice the complainant was not treated less favourably.  The complaints are misplaced and irrelevant.

The complaints are out of time and the complainant lacks locus standi to proceed and without prejudice the complainant was not treated to less favourable treatment at any stage during his time as an agency worker  It is not of relevance to this complaint why the complainant was later offered a contract of indefinite duration by the CEO at the salary that he was offered.

Evidence of Ms Dineen

She was medical manpower manager dealing with consultant application appointment and in 2012 the existing consultants were to get a 30% salary decrease.  She phoned all the impacted consultants including the complainant and explained this to them and did not advise any of them to join an agency.  She felt people were better staying on HSE contracts as there were more benefits with them and the complainant was offered an extension of his contract.

Under cross examination she outlined she would not have known what salary he would have received if he went working with the agency.  The reason people were offered a contract of indefinite duration was because of the expense involved with agency.  She did not know why the CEO at the time offered a permanent contract to the complainant on his previous salary and was dumbfounded as she was not aware of any guidelines or circular that allowed for this at the time.

The complainant submits that he should not have been enrolled into the Single Public Service Pension Scheme (SPSPS) with effect from 06/07/2015 and as an agency worker was treated less favourably than a comparable permanent employee in terms of his conditions of employment.  The respondent submits that the complaint is out of time as the complainant has not been an agency worker since 2015 and without prejudice the respondent refutes the claims.

Preliminary Issue #1 Time Limits:

The respondent submits that the complaint is out of time which the complainant refutes.

Section 6 & Section 8 provides that:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

It was not in dispute that the complainant was a fixed term worker from January 2011 to July 2015 and that he was engaged as an agency worker from 01/07/2013 to 05/07/2015 through a locum agency and that he secured a contract of indefinite duration on 06/07/2015.  It was also not in dispute that the complainant was aware that this contract of indefinite duration warranted a different pension scheme from certainly 2019 if not before that.  While I note his submission that that the complainant secured a pre-2012 non-new entrant salary with an apparently different superannuation applied,  it would appear that he was aware of the superannuation applying at the time and was certainly aware of it in 2019 and his claim is therefore manifestly out of time and there would not appear to be any provision within the legislation to extend the 12 months provided for under the Act even with “reasonable cause”.

I find that in all the circumstances that the complaint was presented outside of the statutory time limit and that I have no jurisdiction to hear the complaint and that the complaint is not well founded.

CA-00064823-001

I find that in all the circumstances that the complaint was presented outside of the statutory time limit and that I have no jurisdiction to hear the complaint and that the complaint is not well founded.

CA-00064823-002

I find that in all the circumstances that the complaint was presented outside of the statutory time limit and that I have no jurisdiction to hear the complaint and that the complaint is not well founded.

Fixed term employee, agency worker, pension