Teacher should not have got less advantageous pension, court rules

A post-primary school teacher should not have been put into a less advantageous pension scheme by the Department of Education following its introduction eight years ago under emergency measures to deal with the financial crisis, the High Court has ruled.

Enda O’Rourke worked since 2007 as a technical subjects teacher in the fee paying Wesley College in Ballinteer, Dublin.

From 2007 to 2016, he was paid directly by the college and was employed as a substitute teacher, providing special needs education, teaching supervision, general supervision as well as substitution duties

In 2016, he was designated a part-time teacher which was an incremental post of one year’s duration.

Teachers’ pay had been reduced under the 2013 Financial Measures in the Public Interest Act.

Industrial unrest followed and led to the Haddington Road agreement which made Mr O’Rourke’s supervision and substitution work no longer optional and unpaid.

Unless they were eligible to opt out, all teachers had to participate and Mr O’Rouke was not eligible. He continued to provide supervision/substitution for 57 weeks between October 2013 and November 2014.

He was already enrolled in the 2009 Secondary, Community and Comprehensive School Teachers Pension Scheme.

But a new law was passed in 2012 - the Public Service Pensions (Single Scheme and Other Provisions) Act 2012 - which closed that 2009 pension scheme.

All new entrants were put into what was called the “Single Pension Scheme” which was less advantageous than the 2009 scheme.

After he was officially designated a regular part-time teacher in 2016, his payslip now had him on the new 2012 pension scheme.

He protested and was told that because he had a break in his employment for more than 26 weeks, on his return to employment he had to be entered, as part of the legislation, into the new 2012 single pensions scheme.

The break referred to was the 57 weeks in 2013/14 when he continued to provide supervision/substitution but for which he was not paid and which was well in excess of 26 weeks.

He brought judicial review proceedings arguing he never resigned, retired, or ceased to serve as a teacher in Wesley College. He maintained he was wrongfully removed from the old pension scheme.

The Department of Education and Skills argued, among other things, that the 57 week period of not being paid amounted to “ceasing to serve in a public body.”

Mr Justice Charles Meenan, in a judgment published this week, said Wesley was a public body as it qualified as being “wholly or partly funded” by the State.

Mr O’Rourke’s property rights are protected by the Constitution. The judge said the Supreme Court has found where there are implications in legislation for those rights, they must be expressed with reasonable clarity.

To accept the Department’s argument that Mr O’Rouke “ceases to serve” meant offending that principle by saying he had ceased to serve as a pensionable public servant. The court was being asked to read words into the 2012 single pension scheme legislation “which were not there.”

In the judge’s view this was not permissible as the court would “in effect be rewriting” part of the legislation.

He found Mr O’Rouke did not cease to serve in public body, there was no break in his service and he was wrongfully removed from the more advantageous 2009 Pension Scheme.