EDA208

This is an appeal by Mr. McCabe, ‘the Complainant’ of a decision by an Adjudication Officer, ‘AO’, under the Employment Equality Acts 1998 to 2015, ‘the Acts’. The AO decided that the complaint under the Acts, that Boliden Tara Mines, ‘the Respondent’, had discriminated against the Complainant on grounds of disability, was taken outside the time limits specified in s.77 of the Acts and was, therefore, statute barred.

The Complainant had been an employee of the Respondent and was a member of the Respondent’s superannuation scheme. From 1984 onwards, the Complainant had also been a member of the associated Income Continuance Scheme, (ICS). In 1991, the Complainant was certified medically as being unfit to work for the Respondent and the Complainant was written to on 29 October 1991 to confirm the acceptance by the Respondent of this assessment. The Complainant ceased work at that point. Under the ICS, the Complainant received a benefit from then. This included a payment by the ICS provider of a superannuation contribution to the Respondent’s superannuation scheme until 12 September 2016, when the Complainant reached normal retirement age.

In the meantime, in 1998, a considerable improvement in the Respondent’s superannuation scheme was negotiated. The benefits under the scheme ceased to be integrated with the State pension arrangements and the reduction in the superannuation benefits to take account of this integration was no longer applied. This improvement was not extended to the Complainant when he reached retirement age.

The Complainant lodged a complaint under the Acts on 17 November 2016. The Complainant contends that he remained an employee until he reached his retirement age and was entitled to all improvements in the superannuation scheme applied to other employees.

The Respondent disputes this. Accordingly, the Respondent argues that the complaint submitted on 17 November 2016 is outside the time limits provided for the submission of complaints in s. 77 of the Acts.

The AO accepted the Respondent’s arguments to this effect and the Complainant appealed this Decision.

The Court received substantial submissions on the substance of the issue but decided that before any such arguments could, or should, be heard, the preliminary issue of jurisdiction had to be determined and the parties were invited to make submissions on this point.

Summary of Complainant’s arguments

The Pensions Act 1990, as amended by the Social Welfare (Miscellaneous Provisions) Act 2004, refers to complaints being submitted within 6 months or, at most, 12 months from the termination of the ‘relevant employment’, (s.81E). Relevant employment is defined as ‘Any employment (or any period treated as employment) to which the scheme applies’. The Complainant as an active member of the scheme for whom contributions continued to be paid is entitled to have the period during which he was paid under the ICS regarded as ‘period treated as employment’.

The letter issued to the Complainant on 29 October 1991 that purported to terminate his employment makes reference to Article 9.03 of a union/management agreement, which clause allows a beneficiary under the ICS to take up active employment again if deemed fit to do so, something that is not available to any other worker who terminates their employment or has their employment terminated by the Respondent.

The text of this letter of 29 October 1991 states, incorrectly, that the Respondent was obliged to terminate the Complainant’s employment by reference to Article 9.03 . In fact, this clause uses the phrase ‘may be discharged’. It does not make discharge mandatory and there is no requirement in the ICS for employment to be terminated. However, there is a provision in the ICS to allow the Complainant to return to work, should his condition improve. Indeed, the ICS requires annual medical check-ups and if any of these had deemed the Complainant to be fit, he would have returned to his job as a miner.

The Respondent cannot distance itself from the ICS, which was set up when the Respondent submitted proposals to a company to provide income to employees who suffered disablement. That company remitted sums to the Respondent to allow the Complainant to accrue service years for superannuation purposes.

The Union representing the Complainant always intended that recipients of benefits under the ICS would be included in improved negotiated benefits in the superannuation scheme. The Respondent never made any representations to exclude this group.

The contract of employment between the Complainant and the Respondent lived on as the Complainant remained covered by the definition of ‘relevant employment’ in the Pensions Act from 1991 to 2016 and his superannuation contributions continued to be paid. The Complainant had no reason to believe in 1991 that the Respondent was intent upon treating him less favourably than other employees. This only became apparent in 2003 when the first ICS recipient retired and the Complainant could not take a case until he, himself, retired in 2016.

Summary of Respondent’s arguments

The Complainant ceased to be in the Respondent’s employment with effect from 1 November 1991. The letter issued to him on 29 October 1991 could not have been clearer. It stated; ‘….you are permanently unfit for work in the Mining Industry, now or in the future….’ and ‘ I regret to inform you that I am obliged to terminate your employment under Article 9.03 of the Company/Union Comprehensive Agreement with effect from 1 November 1991’. The Complainant has not since been employed by the Respondent or any associated or affiliated employer.

The Complainant had previously opted on a voluntary basis to join the ICS, which was provided by an outside commercial provider. It was not a condition of employment for employees to join this scheme and the Respondent provided no funds to the ICS.

The ICS paid beneficiaries directly and remitted a contribution from the fund to the Respondent’s superannuation scheme, so that beneficiaries could accrue pension credit up to pension age.

The Employment Equality Acts are clear that claims cannot include ‘pension benefits’.

Any complaint must be submitted within 6 or, at most, 12 months of the alleged discrimination and as the Complainant ceased to be an employee and had no further employment relationship with the Respondent after 1 November 1991, he is well outside these limits.

Article 9.03 of the union/management agreement does not mean that the Complainant continued to be an employee. It provides that a person whose employment is terminated on grounds of ill health might be ‘re-hired’. To be ‘re-hired’ requires that a termination occurred in the first instance. It is not disputed by the Complainant that he was never subsequently in a position where he could be re-hired.

The key provisions of the superannuation scheme defined employees as ‘employees of the Employer who are normally employed in the Republic of Ireland..’ ‘Service’ is defined as ‘service with or employment by any one or more of the Employers..’ These are not applicable to the Complainant after the termination of his employment in 1991. ~Likewise, the definitions of ‘Temporary Absence’ are not applicable as periods in receipt of ICS benefits can only be so regarded if the Member is re-hired within two and a half years. At the expiry of this period, the scheme provides that the Member ‘shall be deemed to have left Service’.

The Complainant did not comply with the Court rules regarding the provision of submissions within the specified time.

The applicable law

Employment Equality Acts

(5) (a) Subject toparagraph (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 Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainantparagraph (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.

(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

Deliberation

The hearing conducted by the Court sought submissions solely on the question of whether the complaint under the Acts was submitted in time. The Court has not considered any other point made in the course of the hearing.

While the Court notes with some sympathy that it would have been impossible for the Complainant to fore-see the implications of the correspondence received by him in 1991, that cannot form any part of the consideration of the issue to be determined. The question for the Court is to determine when the employment relationship ceased.

The Acts allow for complaints to be lodged even after employment ceases, provided any such complaint is brought within 6 months, or 12 months at most, of the action that gave rise to the complaint. As there is no provision in legislation that allows the Court to look beyond these time limits, it is crucial that the Court determine the date on which the Complainant ceased to be employed by the Respondent.

The letter issued to the Complainant on 29 October 1991 is unambiguous. The phrase used is clear and brooks no interpretation. It states ‘..I am obliged to terminate your employment..’

Furthermore, the article of the union/management agreement on which the Complainant placed so much emphasis, Article 9.03, is equally clear in providing that somebody who is medically unfit ‘may be discharged’ but he may be ‘re-hired’ if it is evident that his health has improved. The ordinary meaning of ‘re-hired’ suggests that the person concerned had ceased previously to be an employee and it is clear that this is what it is intended to mean in the relevant clause of the agreement.

The Court has no discretion in this matter. If as the Court believes, the employment relationship ended in 1991, then a complaint under the Acts is, quite simply, outside of the statutory time limits.

The fact that the Complainant was prudent enough to take out an insurance policy with an outside third party provider in order to protect his income and that the fact that the union was wise enough to have that accommodated by the Respondent through a deductions at source facility, do not affect materially the date on which the employment relationship was, so unequivocally, terminated. The application of one of the considerable benefits of the scheme, whereby the ICS providers paid the Complainant’s superannuation contributions in order to purchase pensionable service, does not confer an automatic on-going employment relationship between the Complainant and the Respondent. The Complainant’s representative emphasised this aspect of his case in order to support the contention that this created a period of ‘relevant employment’ within the meaning of the Pensions Act. While the Court did not receive a valid appeal under the Pensions Act, consideration was given to the Complainant’s status for the period while he was in receipt of ICS payments as, obviously, this could potentially influence a determination on when the employment relationship ceased.

Many superannuation schemes provide for the possibility of purchase of notional service. By definition, service that is ‘notional’ does not require any employment relationship for the period concerned, beyond what is notional, and the purchase of notional service cannot circumvent the inarguable fact that the Complainant was advised in 1991 that his employment was terminated or that the protection offered by Article 9.03 of the union/management agreement was to provide that he could be ‘re- hired’ if fit to return to work, having earlier been ‘discharged’ .

It is clear that the Complainant and his union believed that he was covered by the improved superannuation arrangements that were negotiated after he ceased working in 1991. Any concerns that he and they may have, as a result, are matters of industrial relations rather than issues for consideration under the Acts as, in the view of the Court, they arose after the cessation of the employment relationship and after the opportunity provided by the Acts for a complaint to be taken.

Determination

The Decision of the Adjudication Officer is upheld.

The Court so determines.

Signed on behalf of the Labour Court



Tom Geraghty
CC______________________
24 January 2020Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.