The Department of Health and Children received a copy of the presentation to the committee by the former National Rehabilitation Board, NRB, employees on 28 April. Not having sight of the appendices referred to, our submission is a factual account of how the dissolution of the NRB came about and the structures put in place by Government to facilitate the smooth transition to mainstreamed services for people with disability.
The NRB was set up under the Health (Corporate Bodies) Act 1961. The National Disability Authority Act 1999 provided for the NDA to be established and for the NRB to be dissolved. The Comhairle Act 2000 provided for reconstitution of the National Social Services Board, NSSB, into Comhairle. Statutory Instrument 170 of 2000 transferred certain properties, rights and liabilities of the National Rehabilitation Board to the National Disability Authority and three other existing bodies. SI 171 of 2000 dissolved the NRB and provided for the transfer of its 185 posts to the National Disability Authority — set up under SI 170 of 2000 — and three other existing bodies. SI 445 of 1998 — local government superannuation scheme — is the superannuation scheme former NRB employees were members of and from which any superannuation entitlements derive.
Following the report of the Commission on the Status of People with Disabilities, in November 1997 the Government decided to set up an establishment group for the National Disability Authority under the Department of Justice, Equality and Law Reform. The establishment group was tasked with preparing detailed proposals for the establishment of the NDA and the future location of departmental responsibility for the functions of the NRB and the setting up of a disability support service.
The establishment group reported in June 1998 with proposals which included the following: the statutory functions of the NDA; merging the appropriate services of the NRB and the NSSB into a new support service under the remit of the Minister for Social, Community and Family Affairs; and transfer of responsibility for vocational training and sheltered and supported employment from the NRB and the Department of Health and Children to the Department of Enterprise, Trade and Employment.
The establishment group also recommended that NRB staff would be reallocated to the NDA, the new support service, Comhairle, FÁS, the Department of Health and Children and the health boards, in proportion to the needs identified in each case as a result of the relocation of the NRB's functions. The Government accepted those recommendations in July 1998 and called on the establishment group to implement them through the dissolution of the NRB and the transfer of its functions and resources, including staff, to the relevant mainstream service providers and the NDA. The NDA was also to be established as a statutory agency. That process was completed in June 2000 with the introduction of the policy of mainstreaming.
The establishment group was chaired by Ms Sylda Langford of the Department of Justice, Equality and Law Reform, which was the Department with responsibility for disability equality, including the new policy of mainstreaming. Representatives of other relevant Departments and State agencies, including the Departments of Finance, Social and Family Affairs, Enterprise, Trade and Employment and Health and Children and FÁS, the NSSB-Comhairle and the NRB participated in the group. In addition, a human resources expert group was set up to deal with any staffing issues arising from the transfer of NRB posts. With the agreement of all parties, a mediator was appointed to conclude negotiations with staff representatives before the final proposals for their transfer in the form of an industrial relations agreement were voted on and accepted.
The relocation of NRB staff in proportion to the needs identified in each case as a result of the relocation of NRB's functions, was a key principle underpinning the implementation process. That also meant that the question of abolition of posts did not arise in any case. The NRB undertook the initial consultation process with its employees in order to achieve an agreed approach to staff transfers and ensure the optimum matching of staff to the receiving employers. The two largest receiving employers were FÁS and Comhairle, followed by the NDA with technical staff transferring to audiology services within the Eastern Health Board and psychologists transferring to the National Educational Psychological Service, NEPS.
The National Disability Act 1999 was enacted in December 1999 and commenced in June 2000. As well as establishing the NDA, it provided for the dissolution of the NRB and the transfer of its functions, properties, rights and liabilities. It also provided for the transfer of its CEO and staff and the preservation of their existing terms and conditions including superannuation. That was followed by the Comhairle Act 2000, which reconstituted the NSSB into Comhairle and included advocacy among its functions.
With the acceptance by NRB staff of an IR agreement, which also protected their existing terms and conditions, including their superannuation benefits under the local government superannuation scheme, PRSI status and incremental dates, the arrangements for the dissolution of the NRB were completed in June 2000 and individual letters confirming that were issued.
The NDA and Comhairle Acts were commenced in June 2000, accompanied by Statutory Instruments 170 and 171 of 2000. SI 170 provided for the transfer of NRB properties, rights and liabilities. SI 171/2000 provided for the transfer of all 185 serving staff to a named receiving employer as set out in the schedule to the statutory instrument. The schedule attached to SI 171/2000 identified each office by grade and number of staff to be allocated to each of the receiving employers.
Employees of the former NRB were members of the local government superannuation scheme, LGSS, and on transfer had their superannuation benefits protected in the legislation or through IR agreements. The individual case raised concerns a claim for redundancy following the granting of early retirement on the grounds of "ill health" to an individual who did not transfer to a new employer. In this case, the employee had elected for one receiving employer, then another, before seeking to retire on grounds of ill health. This employee did not accept the IR agreement referred to above. The Employment Appeals Tribunal, EAT, made a finding of redundancy, within the special meaning of section 21 of the Redundancy Payments Act 1967, in his case. No other case was before the Employment Appeals Tribunal. The Employment Appeals Tribunal finding applied in the very particular circumstances of this individual alone who, it found, did not accept employment with any of the designated public bodies under the relevant statutory instruments. In the case of this individual, the HSE granted the pension increase on grounds of abolition of office for the purposes of the LGSS by reason of the finding of redundancy and for no other reason.
Other than in the case of the former employee referenced, all NRB employees accepted employments with the named bodies under SI 171/2000. That statutory instrument provided for the transfer of serving staff to a similar office under the relevant public body as set out in the schedule to the statutory instrument. The schedule identified each office by grade and number of staff to be allocated to each of the receiving employers. The post of the former employee referenced was included in that office identification. All terms and conditions of employment were preserved. Section 36 of the National Disability Authority Act 1999 confirmed this.
The Employment Appeals Tribunal made a finding of redundancy within the special meaning of section 21 of the Redundancy Payments Act 1967. Section 21 applies "where an alternative offer of employment has not been accepted in circumstances where it would not be unreasonable for the employee concerned to so refuse in the circumstances". The refusal of new employment by the former employee referenced appears to have been accepted by the Employment Appeals Tribunal as falling within the particular circumstances of section 21 of the 1967 Act. The Employment Appeals Tribunal decision applied only to the former employee referenced.
The High Court did not affirm that a redundancy situation applied in the NRB in June 2000. The High Court decision was narrow in scope. It stated, “there seems to be no provision in the statute or statutory instrument to provide for people in the position of the defendant in this case. However, it is not the function of the court to correct that omission. In my view the Tribunal was incorrect in attempting to attach responsibility to the Minister as representative of the NRB.” The claim by the Minister that the Employment Appeals Tribunal did not address the question as to whether the employee referenced was dismissed by reason of redundancy or whether he ended his employment by agreement was not sustained. The position of the employee referenced was that, as stated by the Employment Appeals Tribunal, “the claimant argued that this situation was forced on him when the NRB dissolved and no agreement was reached on his transfer to any of the other bodies.” This is not the situation in which all other employees of the NRB find themselves.
With regard to the present claim for abolition of office pension, there is no such thing as an "abolition of office pension". The letters of application for “abolition of post pension” which were submitted en masse in 2006, relied on and cite Article 66(1)(b) of the LGSS. This is merely a provision for the granting of added years in certain defined circumstances. [Ms Simonetta Ryan]Article 66(1) of the Local Government (Superannuation) (Consolidation) Scheme 1998 states:
66. (1) Where a registered officer of a local authority has not less than ten years of pensionable local service and-
(a) he or she is removed from office for a cause other than misconduct, unfitness or permanent infirmity of mind or body,
(b) his or her office is abolished, or
(c) his or her position has been materially altered to his or her detriment by changes in its conditions made without reasonable cause and he or she resigns his or her office,
the local authority may, if they so think fit, add to his or her pensionable local service a period not exceeding-
(i) if his or her pensionable local service is twenty years or more — ten years,
(ii) if his or her pensionable local service is less than twenty years — half that service.
In essence, it is considered that the circumstances under which a discretion under Article 66(1) falls to be exercised do not arise.
Under Article 66 there is no specific provision in place as suggested. The local government superannuation scheme makes provision for discretionary augmentation in certain defined circumstances. That any augmentation is discretionary in nature is emphasised by the terms of Article 66(3) which states that "a local authority may, if they so think fit, add less than the maximum period permitted in accordance with this article".
While all of these persons were transferred to alternative employment one of them took a case for abolition of office to the Labour Court. The court ruled on 8 November, in recommendation LCR 19047, that the claimant's post had not been abolished. There is no abolition as the offices transferred and no redundancy occurred as offices were taken up.
On unco-ordinated pensions, the protection of terms and conditions of employees provided for in section 28(8) of the National Disability Authority Act 1999 covers staff transferring to that organisation. Employees redeployed to other employments were given similar guarantees in industrial relations agreements. This protection covered immediate redeployment only. Existing pension rights of all former staff transferred to the receiving employer. If staff subsequently secured employment, through open recruitment, regardless of whether the posts advertised related to previous functions of the National Rehabilitation Board, NRB, they took on the employment terms and conditions associated with the new post.
On the exit package for employees, the mediator did not recommend the abolition of any posts in the dissolution process. She did, however, recommend that "where management are satisfied that exceptional personal circumstances do exist they should recommend that said individual be offered an exit package". As far as the Department of Health and Children is aware all employees transferred with the exception of the employee referenced above. In his case he was given an enhanced pension including added years based on Article 66(1) of the local government superannuation scheme. Therefore, there are no cases of exceptional circumstances where an exit package would be required.
There follows a summary of what is being sought by this group. First, an acknowledgement by the State that former NRB staff were denied their legal right to an abolition of office pension. In the case of this group of former employees no abolition of office occurred. As stated above, former NRB employees were not denied any legal rights and, in fact, had all their employment rights protected. Second, the legal lacuna as identified by the High Court must be addressed as a matter of urgency. There is no legal lacuna as there are no outstanding issues with which to deal. Third, a competent independent person to be appointed to deal with outstanding issues and to deal with staff on an individual basis. This does not arise as there are no outstanding issues. Fourth, that a legal process is established to finalise all outstanding issues. There are no outstanding issues that require a legal process.
