Complainant

Respondent

Anonymised Parties

A Bank Employee

A Bank

Act

Complaint Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under section    81(e) of the Pensions Act, 1990 as amended by the Social Welfare    (Miscellaneous Provisions) Act 2004

CA-00011405-001

18/05/2017

The complainant alleged that he was discriminated against   on the basis of his age with regards to his pension.

The   complainant commenced employment on 7^th January 1980 at the age of   21 years and 57 days. He availed of   voluntary redundancy under the Voluntary Parting Terms of the Respondent and   his employment terminated on 31^st July 2015.

He   advised that members of the pension scheme are treated differently dependent   on what age they joined. For members   joining under the age of 21 the deferred pension is payable from age 60   whereas for all other members, including the complainant, who joined at 21   years and 57 days, the deferred pension is payable from age 65.

He   alleged that this discriminated against him by his age and that it also   financially disadvantaged him. He had submitted a claim also under Equal   Status Act but had not progressed with this.

The   respondent raised two preliminary issues:

Out of Time:

The   respondent detailed that the complainant had ceased employment on 31^st   July 2015 but his claim was received by the WRC on 18^th May 2017,   therefore it was statute barred to proceed as under Section 81E of the Act a   complainant must refer a complaint within “six months from the date of   termination of the relevant employment”, extended to a maximum of twelve months for “reasonable   cause”.

Breach of Agreement

The   respondent outlined that the complainant had received a termination payment   which included statutory redundancy and an ex gratia payment and an   additional training grant as part of his Voluntary Parting Terms. Also as part of these voluntary parting terms,   he had signed and dated acceptable of same which detailed that it was in full   and final settlement of all claims which he had or may have against the respondent.

Without   prejudice to the above the respondent confirmed the general facts of the   complainant’s employment history.

When the   complainant wrote to the respondent on 10^th June 2016 querying the   rule regarding age he was provided with the relevant section of the rules   namely Section 7 Part 3 which details that the age of 21 is the cut-off age upon   entry into the scheme which later entitles one to optional retire early at   the age of 60 rather than the normal retirement age of 65.

The   complainant queried this further on 2^nd January 2017 and the   respondent replied on 4^th January advising the complainant that   the respondent is obliged to operate the fund in line with the Trust Deed and   Rules and thus cannot allow the complainant to retire at age 60 as he had not   joined the Scheme before attaining age 21

The   respondent quoted extensively from the Pensions Act 1990 which set out the   circumstances where age may be used as a condition or criterion in a pension   scheme without breaching the principle of equal pension treatment as long as   it does not to amount to gender discrimination.

They   also cited case law of Kevin Charlton v   Bus Eireann (DEC-P2011-004) a case where the equality tribunal upheld the   right of the respondent to fix age as a condition of entry to the company   pension scheme.

The   first preliminary issue which needs to be addressed is whether the claims   referred by the complainant are statute barred and accordingly should be   dismissed. Section 81E of the Pensions Acts provides, in the first instance,   that a complainant must refer a complaint within “six months from the date   of termination of the relevant employment”. The Section further provides   that this period can be extended to a maximum of twelve months for “reasonable   cause”. The period between the termination of the complainant’s relevant   employment and the date of referral of the claim is almost 22 months.

The   complainant argues that he did not know about such time limits.

The time   limits prescribed under Section 81E of the Pensions Acts are clear and   unambiguous. These time limits require a claim to be referred at the maximum,   within twelve months of the date of termination   of a complainant’s employment.

81E(5) Subject to subsection (6), a claim for redress   in respect of a breach of the principle of equal pension treatment or   victimisation may not be referred under this section after the end of the   period of 6 months from the date of termination of the relevant employment.

(6) On   application by a complainant, the Director, the Labour Court or the Circuit   Court as the case may be, may, for reasonable cause, direct that, in relation   to the complainant, subsection (5) shall have effect as if for the reference   in it to a period of 6 months there were substituted a reference to such   period not exceeding 12 months as is specified in the direction, and where   such a direction is given, this Part shall have effect accordingly.

The   complainant’s employment ceased on 31^st July 2015 and his claim   was received by the WRC on18th May 2017.   Even with reasonable cause, the maximum time limit was not complied   with. On that basis, I must reject the   complainant’s claim as any departure from the application of the time limits   of the Pensions Acts would be ultra vires my authority.

On the basis of all the evidence presented and my   findings above, I   declare I do not have jurisdiction to hear this complaint as the complaint   was presented to the Commission outside the time limits allowed.

Pension, age limits, out of time, waiver agreements