Complainant

Respondent

Anonymised Parties

Act

Complaint/Dispute 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-00004228-001

04/05/2016

This dispute concerns a claim by Mr.   Michael Gavagan that the Trustees of the Xerox (Ireland) Pension Scheme   discriminated against him on the ground of disability in their assessment of   his application for an ill- health early retirement pension entitlement and   was harassed and   victimised in the process.

The Complainant was made redundant by Xerox (Ireland)   Limited on 23 June 2009. On 1 July 2009, he first raised with the Company the   possibility of requesting early retirement and subsequently applied to the   Trustees for an ill-health early retirement pension from the Scheme.

The Complainant lodged a complaint with the Pensions   Ombudsman in May 2013 and a decision issued by the Pensions Ombudsman in   2015.

The pension scheme is an occupational pension   scheme within the meaning of the pension acts.

The Complainant submitted:

that the Trustees refused to grant an ill-health   early retirement pension to him despite his fitting all qualifying criteria;

that the Trustees failed to provide   "reasonable accommodation" by refusing to arrange a second doctor's   examination for a pension at a venue closer to his home;

that the   Trustees withheld his leaving service options statement for 2 years;

that the Trustees rejected his application without   giving any reasons;

that the Trustees held ill-will towards him for   taking unfair dismissal and personal injuries actions against the company;

harassment on   the part of the Trustees as a result of:

-            the publication and circulation of a   private and confidential medical report; and/or

-            the circulation and use of the contents of   any application to the Employment Appeals Tribunal dated December 2009; and

-            the processing and circulation of   correspondence exchanged between his solicitors and his former employer's   solicitors;

that the need   for a medical assessment had already been examined and ruled as unnecessary   by the Pensions Ombudsman;

that the   decision of the Trustees in his case was contrary to what any group of   reasonable people would do in similar circumstances; and

Victimisation   on the part of the Trustees by:

-            the Trustees delaying the processing of   the Complainant's application for ill-health early retirement;

-            the Trustees delaying in furnishing the   Complainant with his leaving service options statement; and

-            the Trustees refused to provide the   Complainant with pension information in the lead up to his redundancy in   2009.

that there have   been a number of misrepresentations since he first sought information about   an illness based pension, among others that

a)       An   alleged misrepresentation by one of the Respondents in emailing damaging   falsehoods about him to others along with his private and confidential   medical report

b)      An   alleged misrepresentations circulated by the Respondents at their meetings   where damaging and untrue falsehoods about him were uttered and recorded in   minutes by Trustees

c)       An   alleged misrepresentation by the Respondents Chairman that he was in receipt   of a Farm Assist payment by Social Welfare  

d)      An   alleged misrepresentation by the Respondents Chairman that there were no   suitable Occupational Health medical practitioners outside Dublin

The   respondent denied discriminating against the complainant as alleged or at   all.

Notwithstanding   their denial of any discriminatory treatment, the respondent contended that I   have no jurisdiction to investigate this claim as it was out of time.

On 1 July 2009, the Complainant first raised with the   Respondent the possibility of   requesting early retirement and subsequently applied to the Trustees for an   ill-health early retirement pension from the Scheme.

Section 81E of the Pensions Act provides that   "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   relevant employment". The period of 6 months may, on application, be   extended to a maximum of 12 months.

The Complainant ceased to be in employment on 23   June 2009 when he was made redundant. Even if an extension were granted, in   order to have locus standi to bring a claim under section 81E, the   Complainant would need to have submitted the claim on or before 23 June 2010.  

The complaint was submitted on 4 May 2016, more   than 6 years after the date of termination of relevant employment.

In order for the Complainant to rely on section 81E   (7) of the Pensions Act, he must demonstrate that there has been a   misrepresentation which the Respondent submits is some statement or conduct   on the part of the Trustees which conveyed a false or wrong impression and   that this contributed to his failure to submit his complaint within the time   allowed. The Respondent set out that   the Complainant failed to do so and they categorically rejected any   allegation that there was any misrepresentation made by or on behalf of them   to the Complainant and/or that any representation made, caused the   Complainant to delay in referring his complaint under the Pensions Act.

I am confining my decision to matters arising under the   Pensions Acts.

If I am to investigate this as a claim, I have to firstly consider the   preliminary application that this claim is out of time.

Section   81E (5) and (6) and (7) of the Pensions Acts states:

(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, [Director   General of the Workplace Relations Commission] 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.

(7) Where a delay by a complainant in   referring a case under this section is due to any misrepresentation by the   respondent, subsection (5) shall be construed as if the reference in it to   the date of termination of relevant employment were a reference to the date   on which the fact of misrepresentation came to the complainant's notice.

The Complainant sought   information about an illness based pension in the Autumn of 2008. The date of the termination of his   employment was June 2009. He lodged   his claim in May 2016 with the WRC.

The   Complainant is clearly out of time under sections Section 81E (5) and   (6).

The   Complainant wished to rely on a number of alleged misrepresentations to   extend the time under Subsection 7 above.

The   Oxford English Dictionary defines misrepresentation as “the action or offence   of giving a false or misleading account of the nature of something”.

I have reviewed the   alleged misrepresentations which the Complainant has sought to rely on as a   justification for the delay in lodging his complaint.

I find that it is more   probable that the delay in lodging this complaint was due to the Complainant   progressing other claims/ complaints with the Employment Appeals Tribunal,   Injuries Board / PIAB and the Pensions Ombudsman before he brought this one. I find that none of the alleged misrepresentations that the Complainant seeks to rely upon go to   the substance of a complaint of discrimination or victimisation and as such justify   the delay and prevented him from lodging this complaint in accordance with Section 81E (5).

The   Complaint is out of time. I have no   jurisdiction to investigate this claim under the Pensions Acts.

Ill health early retirement pension + Time limits +Misrepresentation