ADJ-00025687

Complainant

Respondent

Anonymised Parties

A Payroll Manager

A Healthcare Provider

Representatives

IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00032616-001

02/12/2019

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

CA-00033936-001

22/01/2020

The complainant submits that she commenced employment with the respondent in April 1982. She began her career in accounts section and then progressed to payroll manager and held this role for 14 years. The complainant states that during this period she was diagnosed with a serious medical condition that required her to be put on permanent medication since 1996 including chemotherapy. Despite this, she states that she worked tirelessly in the organisation. The complainant submits that in 2010, she availed of the HSE Voluntary Redundancy Scheme. She contends that this Scheme was a cost saving initiative. In this regard, the respondent lost over 40 staff. The complainant maintains that the Acting CEO and Financial Director requested to meet with her and proposed that she continued to manage the payroll section and work with the respondent’s contractor X Services. The complainant states that this was initially to be for a short time until the respondent could get a business case approved by the HSE to replace her role.

The complainant submits that the organisation had great difficulty getting a business case approval for her role and in finding a replacement. She states that finally, a new payroll manager was appointed however given the complexity of the function, handover of full responsibility for payroll processing was slower than expected and the appointee soon thereafter went on maternity leave and then onto parental leave.

The complainant states that she was informed by the respondent on 1 February 2019 that due to budget cuts her services would no longer be required from 28 February 2019.

The complainant states that in June 2019, the Deciding Officer in Scope Section in Dept of Employment Affairs and Social Protection found in her favour that she was an employee of the respondent from May 2016.

The complainant outlines her issues as follows;

She was assured that pension adjustment for her service from March 2011 – March 2016 would be recognised failing this she would have entitlement to redundancy.

She feels she should not have been put on a 3-day week between November 2018 and February 2019 as she states that her contract should have been one of indefinite duration.

She states that between 4 February 2019 and 11 December 2019, she was not entitled to illness benefit.

She feels that she should have been given 8 weeks’ notice or pay in lieu of same.

The complainant asserts that she requires (i) recognition of Scope decision and payment of full entitlements to ill-health pension entitlements as per Pension Circular 2017 (ii) calculations of pension figures to be revised and based on new gross figures agreed and (iii) withdrawal of threat to withhold payment of all pension entitlements pending repayment of a tax refund.

Preliminary Issues

The respondent submits that both claims are manifestly out of time. The claim under the Unfair Dismissal’s Act was lodged by the complainant on 2 December 2019 and the date of the alleged dismissal was 28 February 2019 as stated on the complaint form. The respondent submits that this is over nine months following the alleged dismissal.

The respondent submits that the complaint under the Pensions Act was lodged on 22 January 2020 wherein the complainant stated that the date her employment ended was 28 February 2019. This complaint was submitted eleven months after the termination of employment date.

The respondent submits that the Unfair Dismissal Acts clearly stipulate that the time limit runs from the date of dismissal and not from any other date. It states that the Pensions Act clearly stipulates that the time limit runs from the date of termination and not any other date. The respondent submits that there is no discretion under both Acts to further extend the time limit past the six-month period unless “reasonable cause” is established. In this regard, the respondent cites the case of Cementation Skanska v Carroll DWT0338.

The respondent submits that when informed by the WRC that her complaint was outside the requisite 6-month period, the complainant responded by letter dated 13 December 2019 stating “I feel my dispute was outside 6 months due to me trying to liaise directly with the company since April 2019. I have all correspondence between us in writing since April 19 – November 2019 to show same. I have never dealt with anything like this before and would really appreciate if I could meet with someone to discuss and be advised of my situation.” The respondent contends that this explanation does not indicate that failure to present the complaint within the statutory timeframe was due to reasonable cause. The respondent highlights the case of McDonalds Restaurants of Ireland v Mary Comerford DWT1628 to support its case. The complainant in that case stated that the reason for her delay was due to her participation in internal grievance procedures and subsequent interactions with the respondent. However, the Labour Court rejected the argument that these interactions operated to prevent her from initiating the complaint within the statutory time limit and held that it did not have jurisdiction to hear her complaint. The respondent further highlights the case of IDM Construction and Services Ltd. v Vasile Buzatu DWT 169 where the complainant did not demonstrate reasonable cause for the delay in lodging his complaint.

Without prejudice to the foregoing arguments, the respondent also outlines a further preliminary issue regarding the complaint alleging discrimination on the grounds of civil status alleging that she was not allowed to join, was treated less favourably, victimised or other in respect of the occupational pension scheme under Section 83 e of the Pensions Act. The respondent submits that it is wholly unclear from the complaint form submitted on 22 January 2020, what the alleged act of discrimination is. The respondent submits that the complainant has failed to provide the necessary basic details to enable the respondent to prepare its defence in relation to the allegations against it.

Without prejudice to the above argument, the respondent submits that it is well established practice that a complainant is required to present, in the first instance, facts from which it can be inferred that s/he was treated less favourably than another person, is , has been, or would be treated on the basis of the discriminatory ground cited. In this regard, it cites the Labour Court case in Southern Health Board v Mitchell DEE[2001] ELR 201 and Margetts v Graham Anthony & Company Ltd EDA 038. The respondent submits that the complainant has failed to discharge this burden of proof and consequently the within claim cannot succeed. In addition, the respondent submits that the complainant has failed to identify a comparator to whom she was treated less favourably than on the grounds of civil status as required under section 66 (1) of the Pensions Act. The respondent asserts that the evidential burden to establish discriminatory treatment rests with the complainant as stated by the Labour Court in Melbury Developments Ltd. v Valpeters EDA0917. The respondent submits that the complainant has provided no evidence of discrimination as required to establish a viable complaint under the Act.

The respondent cites the case of Employee v Employer UD969/2009 and the case of Bus Eireann v SIPTU PTD8/2004 stating that a decision be reached on the preliminary issues before deciding if the substantive case can be heard. The respondent submits that the complainant has not discharged the burden of proof that reasonable cause exits for an extension of the 6 months’ time limit and submit that as a result the complaints must fail.

In addition, the respondent states that the claim relating to the pension matter is entirely misplaced and is manifestly “frivolous” or “misconceived” within the meaning of Section 81 (e ) of the Pensions Act and should be dismissed in accordance with the provisions of that section.

Without prejudice the foregoing, the respondent submits that the fact of dismissal is in dispute as the complainant retired from the respondent organisation on ill health retirement grounds on 27 February 2019 which the respondent supported.

The respondent states that the complainant commenced with it in April 1982. On 14 December 2010, the complainant successfully applied for voluntary redundancy and her employment was ceased on that basis at the end of that year. The Voluntary Redundancy Scheme provided a specific condition that no one availing of the Scheme’s terms was eligible for re-employment within the public health sector for a period of 7 years and only then with the approval of the Minister for Finance.

The respondent states that given the requirement for a level of ongoing payroll management within the Finance department, the respondent engaged with X Services to seek a resolution to this matter following the complainant’s departure in 2010. X Services is a payroll solutions provider which had provided the payroll system to the respondent and it agreed to recruit the complainant and provide services back to the respondent from early 2011. As a result, the complainant was assigned back to the respondent’s payroll team by X Services from early 2011 and X services billed the respondent for this allocation of services on a monthly basis. The respondent asserts that while the complainant claims that she was given assurances this 6 year period of employment with X Services would be reckoned for pension purposes within the respondent organisation, there is no facility in law for an employee of one company to attain occupational pension entitlements in another company of which they are not employed nor is there any documentary evidence to support the claim the complainant makes.

The respondent submits that in April 2016, following discussions between X Services and the respondent, the arrangement was ceased and the respondent engaged the complainant on a contract for services basis from April 2016 until February 2018. The respondent states that the complainant submitted monthly invoices for her services and was responsible for all statutory taxation matters during this period.

The respondent asserts that in February 2018, the complainant was employed on a fixed term contract basis with the organisation. Such appointment was only permissible then as the 7 year embargo had expired. This fixed term contract was due to expire on 30 September 2018 and was to provide maternity leave cover for the payroll manager, who had been employed to this role on 22 August 2016 and who was absent on maternity leave from 5 April 2017 and 10 April 2018. The respondent asserts that at end of September 2018, there was an ongoing piece of work within the payroll function in the respondent organisation on PAYE modernisation and the complainant was asked to remain working for a further period of 5 months (end February 2019) on a 3 day per week basis which she accepted. The respondent highlights that it should be noted that there was no appeal against this decision and no notification of any grievance in relation to same and the respondent continued to work this 3 day arrangement during that period as agreed.

The respondent states that on 12 February 2019, a letter was submitted on behalf of the complainant from her consultant in St. James Hospital claiming ill health retirement and the process for same was commenced with her agreement. The respondent submits that at that time, pension arrangements relating to the respondent’s member of the public sector (NHASS) pension scheme were confirmed and the respondent was in receipt of the standard 90% payment of lump sum and pension while the HSE pensions unit confirmed all details relating to her membership of this scheme in December 2019 and all balances were paid then.

The respondent states that in June 2019, the Revenue Commissioners Scope Section carried out a review of the complainant’s employment arrangement for the period from April 2016 to February 2018. On foot of this review, Scope Section wrote to the respondent in 2019 and confirmed its view that the complainant was an employee of the respondent from April 2016 to February 2019. Accordingly, the respondent was to place the complainant on its P35 return from 2016 and 2017 and would be liable for all back payments of statutory taxation and other payments relating to the complainant being an employee and not engaged on a contract for services. The respondent submits that it has paid the Revenue Commissioners the sum of €100,000 in respect of this decision. The respondent contends that in light of this decision, revised pension calculations were required to be made in respect of the complainant’s membership of the SPSPS pension scheme, the new scheme for public servants recruited since 2012.

The respondent submits that while the complainant had accrued pension benefits between the period from February 2018 and February 2019, she was now entitled to additional benefits for the period from 2016, although once only she had also paid any required contributions to receive same. The respondent states that the complainant was also entitled to receive added years in respect of her ill health retirement and revised calculations were made to increase the values of the additional lump sum and pension she was entitled to based on the salary she would have enjoyed as an employee of the respondent (not the contractor value payments upon which the complainant is seeking to have these benefits calculated). The respondent states that this matter remains outstanding as the complainant will not sign the required documentation to finalise these payments to her. The respondent contends that in light of the complainant’s resignation on ill health retirement grounds, any subsequent claim that her employment from 2016 is on the basis of a contract of indefinite duration is without merit.

Preliminary Issue – Time limits

Section 8(2) of the Unfair Dismissals Act which states the following in respect of time limits:

(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any…

( a ) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable

The date of dismissal is 28 February 2019 and the six-month limitation period is assessed from that date.  The complaint was lodged on 2 December 2019. The test to extend time to permit a claim of unfair dismissal submitted later than six months but within one year is “reasonable cause”.

The established test for deciding if an extension should be granted for reasonable cause shown is that formulated in Labour Court Determination Cementation Skanska (formerly Kvaerner Cementation) v Carroll DWT0425, the Court considered “reasonable cause” in the following terms:

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

 Subsequently, the Labour Court in Salesforce.com v Leech EDA1615 held as follows:

 “It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time.   Thirdly, the Court must be satisfied, as a matter of probability, that the complainant would have presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.”

I have carefully considered the evidence submitted by both sides in the within claim. While the complainant has given reasons for the delay in lodging the complaint due to her trying to liaise directly on matters with the respondent since April 2019 and being unaware of the requisite time limits; I find that under the established jurisprudence, lack of knowledge or awareness on the part of a complainant of legal rights is not a justifiable excuse to base an extension of time application. Accordingly, I find that the complainant has failed to adequately explain the delay and provide a justifiable excuse for the delay. I conclude that the claim cannot proceed as it is statute-barred pursuant to section 8(2) of the Unfair Dismissals Act, as amended.

Complaint under Section 81 (e ) of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

The complainant submitted a complaint under the Pensions Act on 22 January 2020 which is eleven months following the date of the alleged dismissal. The Pensions Act 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004 at Section 81 (e ) (5) states; “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”. In addition at Section 81 (e ) (6), it is stated “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 complaint, 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 a period not exceeding 12 months”.

Section 41 of the Workplace Relations Act states:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

Based on the evidence heard, whilst the complainant advanced that the delay was due to her trying to deal with matters directly and lack of knowledge regarding the requisite time limits, In the circumstances, I find that the complainant has failed to adequately explain the delay and provide a justifiable excuse for the delay.   I conclude that this claim cannot proceed as it is statute-barred.

Complaint of Unfair Dismissal

Pursuant to Section 8 (a) of the Unfair Dismissals Act, I find I have no jurisdiction to hear this complaint.

Complaint under Pensions Act

Pursuant to Section 81 (e) of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004, I find I have no jurisdiction to hear this complaint.

Unfair dismissal, time limits, Pensions Act