Complainant

Respondent

Parties

Joseph  McMahon

Saint Gobain Performance Plastics Ireland Ltd

Representatives

Kevin Langford                                   Arthur Cox                                                   Philip Smith                                                  Arthur Cox

Act

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

CA-00063535-001

16/05/2024

This matter was heard (over the course of two days) by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my function, and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski  -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021), I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice.  I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that, in the interests of processing this matter, I have administered the said Affirmation for each person from whom I heard evidence. It is noted that the giving of false statement or evidence is an offence.

The specific details of the complaint are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 16th of May 2024. In general terms, I am obliged to consider whether or not a contravention (act of discrimination) has occurred in the six-month period directly preceding this date ( the cognisable period is from the 17th of December 2023 to 16th of May 2024). This might be pushed out to twelve months if the Complainant can demonstrate reasonable cause.

The Complainant was not represented and made his own case. When it came time to hear the Complainant’s evidence, the Complainant agreed to make an Affirmation to tell the truth. The Complainant provided me with different documents at different times. I acknowledge receipt of tranches of paperwork on the 16th of May 2024, the 1st of September 2024, the 4th of February 2025 and the 8th of April 2025. No objection was raised to any of the materials relied upon by the Complainant in making his case.

The Complainant additionally relied on the submission attached to his Workplace Relations Complaint Form which read as follows:

ln November 2023 the factory Saint Gobain, that I’ve worked in for 25 years was bought out.

My complaint is my pension was incorrectly funded for that time. I have gone to the Pension Ombudsman who has referred me to you. (Letter enclosed)

 It all falls under the fact that I am a shift worker - working 12-hour shifts. All my pension is based on 39-hour rates, a loss of up to €30,000 of payment into my pension by myself and Saint Gobain.

I pay 2% and the company pays 2% of a defined pension.

ln 2013 the company closed the defined pension to new employees; they started a new pension where the employee paid 4% and the company paid 6% of full wages of 44 hours and shift.

Their 10% of full wages - I was still on 4% for 39 hours.

I questioned the whole process of shift workers being treated like day workers in relation to holiday pay with Complaint No. CA-00012533 through the WRC which we won. See note enclosed. But this did not a Transfer over to my pension.

I am aware of the pension handbook of the definition of salary - enclosed. But my salary was defined by Veronica Steward (Saint Gobain Payroll) salary €61, 871.68.

I have also enclosed the official complaint to PW of Saint Gobain HR by myself and PC my work colleague. PW did not reply to this complaint. I have also enclosed what my pension is now with Saint Gobain. Could you please tell me how a multinational company could get away with this

It should be noted that I initialised the names contained in this narrative..

As the Complainant was unrepresented, I allowed some latitude to him in the making of his case. As I understand it, the Complainant is making the case that he has been discriminated against in the processing, management or application of the occupational pension scheme that he was a member of between the years 2000 and 2023. In essence, the Complainant appears to have been making the case that the pension scheme was under-funded in some way. The Complainant is blaming his Employer for this failure.

Alongside this initial complaint, appears to be a secondary issue concerning discrimination for not allowing the Complainant to join an alternative workplace scheme which came into being in and around 2013.

In both complaints the Complainant is asserting that he has been discriminated against on the grounds of his age.

The evidence adduced by the Complainant was challenged as appropriate by the Respondent’s Representative.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance. The Complainant must establish facts which tend to disclose a prima facie case of discrimination. I placed emphasis on the need to establish my jurisdiction, which can only arise when a prima facie case of discrimination has been clearly attained by the Complainant and from which inferences of discrimination could be drawn.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent had full legal representation at this hearing. The Respondent entity was further represented by a number of witnesses. The Respondent provided me with two written submissions dated the 11th of December 2024 and the 29th of February 2025. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation.  The Respondent witness was questioned by the Complainant.

A Mr. Philip Smith (Pension Expert with Arthur Cox) gave evidence.

The Respondent has raised preliminary issues concerning the identified Respondent and the issue of delay. The Respondent further asserts that there is no discrimination in the operation of this occupational pension scheme.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

The Complainant commenced employment with a company known as Saint-Gobain Performance Plastics Ireland Limited in 1998.

For 25 years, the Complainant contributed to a Defined Benefit Scheme operated by the Employer on behalf of the Saint Gobain Employees. As this is a defined benefit scheme, the accrued entitlements to which an Employee (the Complainant) will become entitled to on retirement are determined by the formulae in the governing documents of the scheme. The retirement entitlements are not determined by the contributions paid over the years. In these schemes the burden rests with the Employer to ensure the funding is in place as each individual Employee (past and present) comes to retirement. The funding is determined by Actuarial advice. Defined Benefit Schemes are not as common as they once were as Employers opt now for the less burdensome Defined Contribution Schemes wherein Employee contributions are invested, and the final outcome is only known on the date of retirement. Ther Employee assumes the risk.

In and around October and November of 2023 the Employer (Saint Gobain) was bought by another company, and the Complainant came to be employed thereafter by a separate entity known as Versiv Composites Limited (“Versiv”). The Complainant worked through to his retirement with the company known as Versiv. I have had sight of the Certificate of Incorporation of this company. The Company changed its name on the sale to Versiv Composites Limited (“Versiv”) and ceased to be part of the Saint-Gobain Group with effect from 1 November 2023.

 In line with Revenue demands, the Complainant was no longer eligible to participate in the Pension Scheme associated with the Saint Gobain Group of companies and the pension figures therein solidified on the 1st of November 2023.

The Complainant was advised (by a Statement of Pension Benefits on Leaving Service document prepared in December of 2023) that the pension which would be payable to him (on retirement) under the defined benefit scheme would be circa €5,000.00 per annum. The transfer value was €41,800.00.

The Complainant was, and is, very disappointed that the potential pension figure after 25 years as a member of this scheme was to be as low as this. I note that the Complainant was still some fifteen years off retirement age in 2023. I accept that the Complainant was genuinely shocked at the figures and simply assumed that there was a mistake.

The Complainant was really angry, and I accept that the acknowledged outcome of 25 years of service doe not seem great. He believes the Employer has calculated his figures on an incorrect amount as they should have taken account of the fact that his absolutely normal working week was 44 hours and not the 39 that the Occupational Pension scheme seemed to operate. I think there is however a cap set in the Rules.

The Complainant immediately set about making enquiries as to how these figures were calculated and in particular, he came to hone in on a perceived company mis-calculation of his weekly wage and in particular the hours he worked each week. I understand that there had previously been an issue (back in 2017) between the Complainant and his Employer concerning whether the Complainant worked a 39-hour week or a 44-hour week. However, I also understand that this issue arose in the context of calculating annual leave. I have seen a letter from the Saint Gobain HR Manager dated the 17th of September 2027 referencing an agreement reached between the parties confirming that holiday pay would henceforward be based on standard rostered weekly pay. As far as I am concerned this was a stand-alone issue (limited to annual pay) dealt with on a voluntary basis between the parties

The Complainant appears to be applying the logic that his pension is lower than he had thought it should be and that this must be due to underfunding/lack of contributions. The Complainant blames the Employer.

However, the Respondent says this logic is misconceived as the Complainant’s benefits from the Defined Benefit Scheme are determined by the benefit calculation rules under the Scheme. The ultimate retirement benefits are not calculated on the basis of the amount of contributions paid. It has been put to me by the Respondent Solicitor that:

(i)                  employer contributions to the DB Scheme are not determined or payable by reference to the benefits of individual members;

(ii)                 the level of employer contributions has no bearing on the Complainant’s benefits from the DB Scheme.

It was put to me by Mr. Smith (a legal pension expert) on behalf of the Respondent that Saint Gobain continues to fund the Defined Benefit Scheme to ensure that the Complainant (along with all his colleagues past and present) will get his entitlement of €5,000.00 per annum on retirement. If the Complainant went to purchase a retirement pension in the sum of €5,000,00 now, it would cost him up to €125,000.00 was the evidence put to me.

Mr. Smith gave evidence that the benefit which accrues to the Complainant under the defined benefit scheme is in accordance with the governing rules and has absolutely nothing to do with age profile of the beneficiary.

The Complainant wrote to the then HR Manager on the 28th of December 2023 stating the following:

I am writing to you today on behalf of myself Joseph McMahon ……. [and another]…to raise a formal complaint regarding the incorrect funding of our defined pension. The pension was based on the word "salary"- which according to the trust and deeds of the pension handbook excludes benefits, bonuses, overtime, and other fluctuating enrolments. This left us with our pension paid on 39 hours only. This is incorrect.

Our actual salary is a 44-hour week, a difference of up to €3o,ooo per year and this was confirmed by Victoria Stewart, Saint Gobain payroll as €61,871 per year and also by complaint No. CA-00012533 with the W.R.C. The company's Human Resource department also confirmed that our standard rostered weekly salary is based on a 44-hour week and has been the case for the last 25-30 years

ln conclusion, I request that you rectify this matter by correctly funding our defined "saint Gobain pension" for the duration of our employment with the said company in response to the said  Statement received in December 2023 set about trying to rectify the situation.

In addition to approaching his previous Employer, the Complainant communicated with the Financial Services and Pensions Ombudsman. I have had sight of the letter sent back to the Complainant on the 12th of April 2024 wherein the Ombudsman refuses to process the complaint made as the issue (it said) raised by the Complainant concerned an issue of salary calculations by the Employer (39 hours v 44 hours) and is not a complaint about how the pension is being operated. Having reached this conclusion, the Ombudsman went on to suggest:

Remuneration and severance agreements are conditions of employment and as such these matters fall outside the remit of the Ombudsman…..

….I would therefore suggest you contact the Workplace Relations Commission (WRC) in line with section M (21(c) of the Act (see appendix below) regarding this salary issue as such an issue would appear to fall under their remit

This advice seemingly throws light on how this matter has come before the WRC. On foot of same, the Complainant issues his workplace relations complaint form on the 16th of May 2025. The Complainant identifies his complaint as:

I have been discriminated against by way of an occupational pension…

 I note that the WRC came back to the Complainant on the 24th of May 2025 stating:

To enable me to progress the complaint, please provide the following information required:

· At least one “grounds” is required.

· The most recent date of discrimination is required

It was in response to this request that the Complainant amended his complaint form to state that he had been discriminated against on the grounds of his age. The Complainant advised that he selected  age as there was no box for his salary not being correctly reported to his pension provider.

The Complainant is therefore seemingly requesting that I look at the Employer’s  funding of the Complainant’s pension over 25 years and find it to be deficient and to make the further finding that that deficiency in funding is of itself discriminatory on the grounds of the Complainant’s age.

I am mindful of the fact that the employment relationship between the Complainant and Saint Gobain had certainly ended on the 1st of November 2023 and that since that time the Complainant (on transfer) has been a direct Employee of the company known as Versiv who is not a party to these proceedings and nor should they be. 

It should be noted that the legislation under which the Complainant brings his complaint – the Pension Act of 1990  - specifically deals with occupational pensions which means the Act is concerned with pensions operated within a workplace and I accept that the Employer/Employee relationship is a necessary factor and therefore need to be mindful of the fact that the Employer/Employee relationship herein ended in late 2023 aforesaid 31st of October 2023.

The Complainant issued his workplace relations complaint form out of the WRC some six and a half months after the transfer of the employment. The complaint form issued on the 16th of May 2024. The Respondent therefore makes the case that this complaint is out of time for not having been brought within six months of the last date on which the alleged discrimination could possibly have been perpetrated.

In this context I take the acts of alleged discrimination to be the acts of administration, management and processing of the scheme which are alleged to be unfair treatment of the Complainant on the grounds of his age. These acts, I am finding, ceased on the 31st of October or 1st of November 2023.

The Complainant was not in a position to establish reasonable cause, and I have no authority to extend the time herein to twelve months. The Complainant is therefore out of tie.

Be that as it may, I will make an observation concerning the Complainant’s more recently articulated complaint concerning his treatment as against the treatment of a named colleague/comparator KC.

As I understand it, some years before the events just outlined, Saint Gobain was anxious to set up a new pension scheme which would be less onerous on Saint Gobain than the defined benefit one that the Complainant was a member of. In 2013 Saint Gobain set up a defined contribution scheme. This new scheme was open to all Employees though the Complainant made no enquiries about joining it at the time. I would have to acknowledge that there is a commonly held perception that the defined benefit scheme is the more preferential scheme of the two. The Complainant says he was not invited to join, and the fault therefore lay with the Employer. The Employer responded saying the pension that the Complainant was on was a very good one around since the 1980s.

The Complainant has identified a comparator who he said was being provided with a better pension outcome because his full salary was being taken into account which the Complainant says was not the case for him. KC he says arrived into the workplace in 2013 and was immediately placed on the Defined Contribution Scheme which he says placed him at an advantage as this scheme calculated on the basis of full salary and full hours. Mr. KC joined the defined contribution scheme back in 2013 and after ten years of contributions, the figures seem to suggest that the KC had a pension scheme transfer Value of €56,000.00. Again, the Complainant was shocked to understand that a colleague on similar earning would have a transfer value some €15,000.00 more than him with ten years less service.

I do note that as of the 31st of October 2023 - the date on which Saint Gobain was sold the company known as Versiv – the Complainant has been in the same pension scheme as KC and that there is parity between the two and both are now treated the same.

Mr. Smith explained that even though KC’s figures looked markedly better than the Complainant’s his pension is and always will be subject to the vissicitudes of the open market whereas the Complainant’s Saint Gobain pension figures are locked in.

In any event, Mr Langford on behalf of the Respondent asserts that the Complainant’s case is misconceived as the Complainant is trying to establish unequal treatment across two separate and distinct pension plans. This is not provided for in the pension equality legislation where your comparator must be drawn from the pension an individual is in. On balance I find I agree with Mr. Langford in this regard.

Another proposition was whether the Complainant was denied access to the pension scheme which KC was in? The Complainant sems to be saying that when this defined contribution scheme was set up with new employees that he should have been given the opportunity to become a member. The Respondent insists that he was entitled to join but that he was already in the Defined Benefit Scheme which would have been perceived to be the more preferable of the two.

The Respondent says that the Complainant has failed to identify any action taken or any other treatment of the Complainant as being inherently discriminatory. The Respondent asserts that whilst the Complainant may not be happy with the figures, it does not amount to some sort of victimisation arsing out of his age.

Ultimately, I believe that the Complainant was equating his own long service with the issue of his age. He seemed to be asserting that because he had been an Employee for such a long period of time that certain benefits or other expectations ought to have accrued to him. When such benefits did not accrue or get realised, he makes the case that this is a discrimination on the grounds of his age. The Complainant himself conceded that he was obliged to select the ground of age where his real complaint concerned the mis-reporting of his earnings by his employer to the pension scheme administrator.

I felt it was important to capture the different arguments put to me by the Complainant in the course of the two days of hearing. It is an unfortunate fact that from the start the Complainant was pushing a boulder up the hill. I understand that the Complainant is aggrieved with the figures as they stand. I am satisfied that, on the face of it, no mistake or malpractice has arisen but any such finding is well beyond my jurisdiction and would involve actuarial evidence which was markedly absent in this matter. What has happened here is that the pensions ombudsman has directed the Complainant to the WRC as this appeared (to the ombudsman) to be a salary/remuneration issue.

The Complainant is not the first litigant with a very real sense of grievance and injustice to want to denounce a particular set of circumstances or actions as discriminatory. However, before the WRC a Complainant is obliged to declare a ground on which discriminatory charge might be brought. The Complainant selected age knowing that there is no rational reason to assert that any action taken by the Employer known as Saint Gobain was discriminatory on the grounds of the Complainant’s age. It simply makes no sense.

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

CA-00063535-001 – The complaint herein fails in circumstances where the Complainant was out of time bringing his complaint before the WRC.