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-00008229-001

17/11/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00008229-002

17/11/2016

The complainant was employed by the respondent in 1983. In 1991 the complainant was unable to continue working in the respondent organisation due to ill health and became a beneficiary of a privately held Income Continuance Plan (ICP). The Insurance Provider that paid the ICP also remitted a payment to the respondent in respect of the complainant accruing pensionable service to normal retirement age.

The complaints relate to allegations of discrimination on the disability ground.

The respondent raised two preliminary points in relation to the complaints. The respondent submits that the Adjudication Officer should decline to consider the complaints as a matter of discretion on the basis of Supreme Court Judgement [2010] IESC 62. The respondent also stated that the complainant’s employment was terminated by letter dated 29th October 1991 and the complaints were submitted to the Workplace Relations Commission on 17th November 2016 some 25 years after the cessation of employment. The respondent contends that the complaints are outside of the time limits permitted by the legislation and are therefore statute barred.

The complainant rejects the preliminary points raised by the respondent. The complainant stated that the Workplace Relations Commission is the appropriate forum to hear the complaints at first instance. In relation to the timing of the complaints, the complainant contends that he remained an employee of the respondent up until his normal retirement age on 12th September 2016. The complainant stated that the purported letter of termination issued by the respondent on 29th October 1991 in line with Article 9:03 of the Company Union agreement was not a clear and unambiguous termination of his employment. The complainant stated that Article 9:03 of the Company/Union agreement provides that an employee who is discharged due to health issues can be re-hired if there is evidence of a sufficient improvement in their health. The complainant stated in evidence that it was always his understanding that he remained an employee of the respondent, would be subject to health checks in line with the ICP and would return to work if his health improved. The complainant also confirmed that his health did not improve and he has remained unfit to be re-employed by the respondent. The complainant submits that the payments made to the respondent by the Insurers for the accrual of pensionable service maintained the employment relationship between the parties until September 2016. The complainant contends that his complaint as submitted to the Workplace Relations Commission on 17th November 2016 is therefore within time.

I have considered the submissions of both parties and find as follows:

Termination of Employment letter

The parties are in dispute in relation to the termination letter which issued to the complainant on 29th October 1991 and his employment status within the organisation. The respondent stated that the termination of the complainant’s employment was confirmed in this letter whereas the complainant asserted that it was always his understanding that he remained an employee of the respondent and could have been re-hired in line with the provisions of Article 9:03 of the Company/Union agreement had there been an improvement in his health.

The contents of the termination letter are as follows:

Dear [Claimant’s First Name],

I wish to confirm your employment position, as recently discussed, following receipt of the final report from the Company Medical Advisor on your medical condition.

In his report the Medical Advisor informed me that he has considered all aspects of your present medical condition and he has now arrived at a final conclusion. He has informed me that you are permanently unfit for work in the Mining Industry, now or in the future.

In view of the foregoing, I regret to inform you that I am obliged to terminate your employment under Article 9.03 of the Company/Union Agreement, with effect from 1st November 1991.

I will make arrangements to have your P.45 forwarded to you by Payroll Department.

I would like to take this opportunity of thanking you for the service you have given to [Name of Company] in the past and to wish you every success in the future.

Yours sincerely,

[Manager’s Name]

Manager, Personnel & Industrial Relations

I find that the contents of the letter are quite clear. I do not find that there was any ambiguity in the letter or that the complainant could reasonably have considered himself to have remained in the employment of the respondent since that time. Accordingly, I find that the employment relationship between the parties ended on 1st November 1991.

Time Limits

Section 81E of the Pensions Act 1990 as amended states as follows:

(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.

Employment Equality Acts 1998-2015

Sections 77(5) and 77(6) A of the Employment Equality Act, 1998 to 2015 state as follows:

77(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General of the Workplace Relations Commissionor Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a)shall have effect as if for the reference 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.

In all of the circumstances of the complaints and on the basis of the termination of the employment relationship on 1st November 1991, I find that complaints CA-00008229-001 and CA-00008229-002 as submitted to the WRC on 17th November 2016 are outside of the statutory time limits permitted for the referral of such complaints.

Having considered the submissions of the parties to these complaints, I declare that the complaints are out of time and are therefore statute barred.