Complainant

Respondent

Anonymised Parties

A Retired Employee

A Local Authority

Representatives

SIPTU

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-00009417-001

27/01/2017

The complaint concerns the inclusion of overtime in the Complainant’s pension calculations. SIPTU on behalf of the Complainant argues that the Complainant has been treated less favourably than named comparators on the grounds of age and disability.

The Respondent raised a preliminary issue in relation to the Adjudication Officer’s jurisdiction to inquire into the complaint on the basis that the Complainant had not referred his complaint within the time limits prescribed by the Act. The Respondent relies on the provisions of Section 81E of the Act and believes that it is statute barred to proceed as under the provisions of the Act the 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”. The Respondent submits that the Complainant retired on the 13th October 2008. The Respondent submits that, even with reasonable cause, the maximum time limit was not complied with. The Respondent submits that, on that basis the Adjudicator must reject the Complainant’s claim.

The Respondent does not accept that, should SIPTU seek to rely on misrepresentation as provided for under Section 81E(7), there is any basis for same. This provides as follows: “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 Respondent argues that such a premise would have to be based on the fact that the Respondent provided a false or misleading account as it relates to the substance of the complaint. The Respondent’s original position was that the overtime was not pensionable, and that position has not changed. Therefore, there is nothing which substantiated any allegation of misrepresentation which the Complainant could rely on as a justification for the delay in lodging his complaint. Nor is there any basis for misrepresentation that the Complainant could seek to rely upon which would go to the substance of a complaint of discrimination or victimisation and as such justify the delay that prevented him from lodging his complaint in accordance with Section 81E(5).

SIPTU on behalf of the Complainant submits that the legislation provides that a worker can make a claim within six months of their retirement date or within six months of when their employer misrepresented their entitlements.

SIPTU submits that the WRC complaint was received on 27th January 2017 and contends that the Complainant’s entitlements were misrepresented by way of letter dated 2nd August 2016 and therefore the complaint was submitted within the required six months reference period.

Section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004 stipulates 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 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 retired on 13th October 2008. The complaint was referred to the WRC on 27th January 2017. The complaint is clearly out of time under sections Section 81E(5) and (6).

SIPTU wished to rely on an alleged misrepresentation to extend the time under Subsection 7 above and argued that the date of 2nd August 2016 was “the date on which the fact of misrepresentation came to the complainant's notice”.

The effect of Subsection 7 is that the time-limit for referring a complaint to the WRC, in circumstances where the respondent has engaged in any misrepresentation, only commences when the complainant becomes aware of that misrepresentation.   In order to avail of the provision, the Complainant must prove, as a matter of probability, that there was misrepresentation by the Respondent and that the delay in referring his complaint is due to this misrepresentation.

In considering this issue, I note that the term “misrepresentation” is defined in Osborn’s Concise Law Dictionary as “A statement or conduct which conveys a false or wrong impression. A false or fraudulent misrepresentation is one made with knowledge of its falsehood, and intended to deceive. A negligent misrepresentation is one made with no reasonable grounds for believing it to be true”. The Oxford English Dictionary defines misrepresentation as “the action or offence of giving a false or misleading account of the nature of something”.

The Labour Court held in the case of the HSE v Tom Whelehan EDA0923 that “The Court next considered the Complainant’s submissions regarding the applicability of s.77(6) of the Act. It appears to the Court that a misrepresentation, for the purpose of the subsection, can only occur where an employer makes some false representation to an employee concerning a material fact”. The Labour Court also held in the case of A Company v A Worker EDA1027 that “In order to avail of the provision the complainant must satisfy the Court, as a matter of probability, that there was misrepresentation by the respondent and that the delay in referring his complaint is ‘due’ to the ‘misrepresentation by the respondent’.”

In the case of Stafford v Mahony, Smith and Palmer [1980] ILRM 53, Doyle J laid down the criteria for the action of negligent misrepresentation as follows: “In order to establish the liability for negligent or non-fraudulent misrepresentation giving rise to action there must first of all be a person conveying the information or the representation relied upon; secondly, that there must be a person to whom that information is intended to be conveyed or to whom it might reasonably be expected that the information would be conveyed; thirdly, that the person must act upon such information or representation to his detriment so as to show that he is entitled to damages.”

The issue of misrepresentation was also dealt with by the Court of Justice of the European Union in the case of B.S. Levez –v- T.H. Jennings (Harlow Pools) Limited Case C-326/96 where it was held that “Community law precludes the application of a rule of national law which limits an employee's entitlement to arrears of remuneration or damages for breach of the principle of equal pay to a period of two years prior to the date on which the proceedings were instituted, there being no possibility of extending that period, where the delay in bringing a claim is attributable to the fact that the employer deliberately misrepresented to the employee the level of remuneration received by persons of the opposite sex performing like work.”

I note that SIPTU argues that the Complainant’s entitlements were misrepresented by way of letter dated 2nd August 2016 and the Complainant became aware of same by virtue of this letter.

I have reviewed the letter dated 2nd August 2016 which SIPTU has sought to rely on as a justification for the delay in lodging the complaint.

I find that in the letter the Council firstly informs SIPTU that an application was made to have a review conducted of the Complainant’s individual superannuation entitlements and that this review is being addressed under the internal dispute process. The Council further outlines the provisions of the relevant Circular Letter S.12/91. It goes on to summarise the Council’s position that overtime payments are only reckonable in exceptional circumstances and where specified conditions are fulfilled. The Council further states that it is satisfied that the overtime referred to by SIPTU was optional and not mandatory and therefore not reckonable for pension purposes under the terms of the Circular. The Council then informs SIPTU that should the Complainant be unhappy with the outcome of this appeal, he may appeal same to the Pension Ombudsman and provides contact details of the Ombudsman.

Having reviewed the Council’s letter I find that the letter outlines the position of the Council in regard to the treatment of overtime in the calculations of superannuation entitlements. This position has been maintained by the Council at all times and is reaffirmed by the letter. I note that the Complainant has a different view in that regard. A difference of opinion, however, does not amount to misrepresentation. Therefore, the “fact of misrepresentation” did not come to the Complainant’s notice on the date of the letter.

Having carefully considered the matter, I find that the complaint has not been referred to the Director General within the time limits provided for in the Acts. Accordingly, I do not have jurisdiction to inquire into the complaint.

Time limits - misrepresentation