Complainant

Respondent

Parties

Padraig  Kiernan

Allied Irish Banks PLC AIB

Representatives

 Appeared in Person  

Mairead Mc Kenna, BL instructed by Shane Glynn

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00042653-001

18/02/2021

This matter was heard by way of Remote Hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

On 18 February 2021, the WRC received a complaint lodged in accordance with the Terms of Employment, (Information) Act, 1994. The Complainant submitted that he had received a statement of his core terms of employment which deliberately contained false or misleading information.

The Complaint was denied by the Respondent who made a Preliminary argument on statutory time limits which impeded the claims progression.

The Complainant presented as a Lay Litigant, who presented his case through extensive oral and written presentations. He also complied with my request to make a supplementary post hearing submission about the Preliminary argument on time limits and to submit details of the Internal Disputes Resolution mechanism undertaken. He was the sole witness in his case.

The Respondent was represented by Mairead Mc Kenna BL, instructed by Shane Glynn, Solicitor and extensive written submissions accompanied the oral presentations at hearing. The Respondent did not advance witnesses in the case.

Both parties considered the implications for the Supreme Court Case of Zalewski v Adjudication Officer and Ors [2021] IESC 24 on the progression of the hearing. Both parties registered their desire to press on with the case.

The Complainant outlined that he had commenced full time work as an Assistant Manager at the Respondent Business from 25 June 2018 until 22 May 2020, on expiration of his extended contract of employment. His gross pay was €5,195.4, monthly. He secured the position through a Recruitment Agency.

Preliminary Issue

The Complainant addressed the issue of statutory time limits raised by Counsel for the Respondent. He submitted that his delay in bringing forward his claim to the WRC was attributed to the respondent delay on notification of the reduced account valuation in July 2020. The resultant protracted internal administrative process aimed at resolution ran until January 2021 without resolution or closure. He was not invited to engage directly with the Respondent staff.

On July 2, 2020, the Complainant learned that he had a potential dispute regarding the operation of the pension at the respondent business. He engaged immediately with the Pension Administrator and the Respondent business. He elected to proceed on the Internal Disputes Mechanism (IDR) as one of three suggested pathways and was informed that his terms and conditions fell outside the IDR mechanism. He then sought to exercise the discretionary rule contained within the pension scheme. The matter culminated in an internal review.

 On 19 January 2021, this process concluded via a rejection of the complainants claim for pension for his employment tenure.

The Complainant submitted that he was faced with a procedural delay prior to submission of the instant complaint and he asked for some understanding of the active complaint process which in turn delayed the submission of the complaint to the WRC until 18 February 2021.

It was the Complainants case that he was not au fait with procedural rules surrounding the WRC or State entities. He had done all in his power to resolve the matter internally and would not have felt comfortable in running   a “twin track “approach i.e. running a complaint to WRC, while internal options remained live.

He was unaware of statutory deadlines in cases coming before the WRC.

Substantive Case:

The Complainant outlined that he is seeking compensation regarding the unpaid employer contributions during his two-year tenure of employment, June 2018 to 22 May 2020. The value of which stood at €23,322.30 plus investment return. He argued that the Respondent had failed to deliver on his contract of employment.

By means of written submission, the complainant explained that he understood at interview that his employment at the respondent business would attract 10% of salary as bank pension contributions (employer contributions).

 He was advised that he would be included in the pension scheme and paid 8% of salary to that end. The Complainant confirmed that this was his second choice of employment and he had refused another job offer to avail of the pro-offered benefits at the respondent business.

He submitted that he had been mis led as the 23 months of employment did not yield that anticipated benefit of employer contributions to the pension fund. He contended that this was a measure of deliberate avoidance by the respondent.

The Complainant relied on the assurances received at interview and noted that an early July 2018 pay slip reflected respondent contribution to the pension scheme of €722.22. The Respondent later matched the Complainants 8% contribution and the Pension Benefit Statement of mid 2019 reflected an anticipated total pension contribution of €15,001. This reflected 18 % contribution by the Employer.

On July 2, 2020, on leaving service, the Complainant learned that the total pension fund valuation now reflected €9,928.21 instead of an anticipated €34,000. He followed this up and established that he was not permitted to retain the employer contributions as he had not concluded 24 months of employment. He was shocked at this information.

The Complainant exhausted the internal disputes resolution mechanism as he did not accept the respondent argument that they were not liable for same. He argued that his dispute lay with the banks and not the Trustees of the Pension scheme. He endeavoured to action the discretionary Trustee clause open to him during December 2020. He was unsuccessful.

The Complainant argued that he had wished to resolve he matter amicably and informed the respondent, that he was considering referring his case to WRC, hoping it may prompt engagement.

The Complainant maintained that he had not been advised of this exclusion clause and was concerned that the practice may be of universal proportions. He clarified that the matter was not live at the Pension Ombudsman level.

The Complainant sought a decision to order the respondent to make good the pension contributions of €23,322.30 (employer contribution) plus investment return.

Complainant Evidence:

The Complainant disputed receiving documentation which fettered the retention of employer contributions to the pension. He relied on his clear recollection of the assurance he received at interview. Both employer and employee contributions had been reflected on his pay slip throughout his employment.

During cross examination, the complainant did not recall receiving terms of employment document on 27 June 2018 or the pension document dated 24 August 2018. He accepted that they were sent.

The Complainant did not submit a response to the respondents post hearing submission.

The Respondent operates a large bank. The Respondent had considered the context and background to the claim and rejected the claim as being out of time as

 It has not been submitted in accordance with the time limits set forth in the Terms of Employment (Information)Act, 1994. There is no valid basis for an extension of time set out.

Preliminary Issue:

Counsel for the Respondent addressed the hearing on the Preliminary Issue .She submitted that the claim had not been brought forward within the 6 months statutory time limit  provided in section 41(6) of the Workplace Relations Act, 2015 and the complainant had not advanced an argument before the hearing date, which sought to extend that time limit by reasonable cause .Therefore , the claim was out of time .

It had been open to the Complainant to make a complaint to WRC in tandem with the internal progressions. He had not chosen this path.

Counsel submitted that the complainant had not advanced a reason for the delay in advancing his claim to WRC. She did not accept the complainant’s submission that he was waiting for information as reasonable. In applying Cementation Skanska v Carroll 38/2003, from the Labour Court, she argued that the complainant had not satisfied the test for an extension of time on reasonable cause therein. She emphasised the extended delay from 14 December 2020, when the complainant had stated his intention to move the matter to third party to 18 February 2021, the date of claim.

She contended this was a gap in time for which the complainant had not explained or excused. The Respondent was not prejudiced by the delay

Substantive Case:

Counsel confirmed that the Respondent had complied fully with their obligations in accordance with Section 3 of the Act.

She submitted that the Complainant had been provided with details of his terms and conditions of employment within 2 months of the commencement of his employment. This document was signed by the Respondent on 3 July 2018 and the Complainant on 27 June 2018.

Details of the particulars of membership of the pension scheme were referred to in Section 10 of this document in compliance with section 3(3) of the Act. In addition, he received information on pension contributions relevant to the complainant as part of a welcome pack on 24 August 2018.

This was followed by the issuing of an explanatory pension booklet by the external administrators, within an 8-week period of employment. This confirmed that that employees of less than 2 years’ service would receive a refund of their own contributions but not the employer contributions if leaving with less than two years qualifying service and before normal retirement date.

You may receive a refund of the value of your own contributions, including AVCs, less tax and any transfer payments. This refund does not include any employer contributions made to your Retirement account. This is a default option

Or

Transfer option without employer contributions.

Counsel reflected that this is standard clause in Defined Contribution pensions and emanates from S. 28(2) of the Pensions Act, 1990.

Counsel submitted that the Terms of Employment (Information) Act 1994 does not confer the WRC with the power to direct payment to the Complainants pension scheme.

She argued that the Complainant had misunderstood the application of the Act, which can only address the alleged non-compliance on the part of the employer with a direction that a statement containing terms and conditions of employment is provided to the employee.

The Respondent submitted a post hearing document which the Complainant had shared with the company on his actively   considered pathways to resolution in the case in December 2020.

The Respondent did not make a direct submission in response to the receipt of the complainants post hearing submission on reasonable cause.

I have been requested to decide in this case submitted under Terms of Employment (Information) Act, 1994 on 18 February 2021.

 In reaching my decision, I have listened carefully to both parties’ presentations at hearing, and I have also considered the complainants evidence adduced. I have also had regard for the party’s thread of documents which revolved around the circumstances of the case.

As the matter of time limits was raised at hearing, I undertook to address this matter as a Preliminary Issue for the parties. I explained that I would hear the Preliminary issue alongside the Substantive case.

I qualified this by explaining further that if I found for the Complainant at this stage, I would press on to complete my decision on the substantive claim. If I found for the Respondent, the decision would conclude at this Preliminary juncture.

I am aware that an early trial of Mediation was attempted and did not resolve the matter. I also offered the parties an opportunity to engage during the hearing, but this was not acceptable to the parties.

Preliminary Issue of Time Limits

The complaint in this case was received by the WRC on 18 February 2021. The Complaint sought adjudication.

It is important for me to reflect the wording of the complaint in this case:

I received a statement of my core terms which deliberately contain false or misleading information

The complainant augmented this with an application for compensation.

I did take a moment to outline my jurisdiction in accordance with Section 7 of the Act.  I also outlined my jurisdiction in accordance with section 41(6) and S. 41(8) of the WorkplaceRelations Act, 2015

Complaint to adjudication officer under section 41 of Workplace Relations Act 2015

7. — (1) An employee shall not be entitled to present a complaint under section 41 of the Workplace Relations Act 2015 in respect of a contravention of section 3 , 4 , 5 or 6 , if the employer concerned has —

( a ) complied with a direction under section 6A given in relation to the contravention before, on or after the commencement of section 8 of the Workplace Relations Act 2015 ] , or

( b ) been given a direction under that section in relation to the contravention and the period specified in the direction within which he or she is required to comply with the direction has not yet expired.

 (1A) An employee shall not be entitled to present a complaint under Part 4 of the Workplace Relations Act 2015 in respect of a contravention of section 3(1A) —

(a) unless the employee has been in the continuous service of the employer for more than 1 month, or

(b) if the employer concerned has been prosecuted for an offence under this Act in relation to the same contravention. 

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of  sections 3 , 4 , 5 , 6 or 6C  shall do one or more of the following, namely —

(a ) declare that the complaint was or, as the case may be, was not well founded,

( b ) either —

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under  section 3 , 4 , 5 , 6 or 6C ] , or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

( c ) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

( d )  in relation to a complaint of a contravention under change section 3 , 4 , 5 , or 6 , and without prejudice to any order made under paragraph (e)  order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977 . 

 (e) in relation to a complaint of a contravention under section 6C , and without prejudice to any order made under paragraph (d) , order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

I had some concern that the Complainant may have wished to direct his claim to WRC Inspectorate in terms of the wording of his claim. This for me bore a certain proximity to Section 6(b) of the Act .

 I noted that he was requested to choose one redress option Adjudication/ Inspection (via WRC Inspectorate ) .

 I was assured that Adjudication was his preferred option. I understand that the complaint form is not a statutory form, but it does reflect the intention of the complaining party at the time of the complaint and clarity is important.

I must now move to consider the issue raised by the Respondent on time limits.

Section 41(6) of the Workplace Relations Act, 2015 provides that:

(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.

This is the statutory time limit affixed to this claim. The Complainant has submitted that the contravention occurred when he was not informed of any vested pension rights in the 23-month contract. He has argued that he was not provided with adequate detail of the parameters of the pension fund employer contribution at that time. He has also fixed his movement of awareness of this shortfall as July 2, 2020. He submitted that he prioritised the resolution of this issue from that point forward and it was only on the natural conclusion of the internal procedures that he referred his case to the WRC. It is very apparent to me that the complainant carries a high burden regarding how he believes he was treated in losing an anticipated access to pension which was at variance with how he understands pension was presented to him at interview.

 However, I must work within the jurisdiction, I am permitted.

Section 41(8) of the Act provides for a discretionary granting of an extension of time up to 12 months post contravention, but no further.

(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.

It is the Respondent case, that the complaint is manifestly out of time. The Respondent exhibited the original statement of terms of employment signed in June 2018 by the Complainant and July 2018 by the Respondent. The Respondent argued that this action complied with the obligations set by section 3 of the Act as the document was accompanied by an information book on pension. This was later replicated by the Pension Administrators.

The Respondent contended that the Complainant has not made out a case for an extension of time on reasonable cause.

For my part, I now propose to explain reasonable cause, which replaced the original test for exceptional circumstances in   Gael scoil Thualach Na Nog and Joyce Fitzsimons Markey, EET034

Reasonable circumstances are not defined in the Act, but considerable case law has followed in treating the application for reasonable cause.

Cementation Skanska v Carroll, as referred to by the Respondent sets out the test for reasonable cause and is worth citing here:

It is the Courts view that in considering 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, it must make sensed, be agreeable to reason and not be irrational or absurd ….

It suggests that 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 his claim in time.

The Courts goes on to advice that length of delay should be taken account of, whether the respondent is prejudiced and whether the complainant has a good arguable case.

My attention has also been drawn to the Labour Courts considerations in a Payment of Wages case in Ervia and Deagan Healy PWD 2020 (PW/19/55, the complainant, sought an extension of time regarding a procedural lag in getting his complaint through a mistaken avenue of the WRC Inspectorate prior to his reaching Adjudication. He had placed the Respondent on notice of taking a claim and was aggrieved that they had not informed him of applying time limits.

The Court, in that case drew on Globe technical Services ltd v Kristin Miller, UDD 1824, when it stated:

It is settled law that ignorance of one’s legal rights as opposed to underlying facts giving rise to a complaint cannot provide a justifiable excuse for failure to bring a claim in time “

The Court found against the Complainant and refused to grant an extension of time.

For my part. I have considered that the Complainant presented as a lay litigant in the case. He gave a very articulate chronological log of the efforts he had made to resolve the issue, once he was made aware of it in July 2020, inclusive of advice sought from WRC in December 2020.

It is not uncommon for the WRC to recognise a subsisting or continuous claim in relation to the failure of a respondent to provide a mandatory statement of terms and conditions of employment, within the requisite period provided for in section 3.

 The facts of this case are somewhat different. While the complainant has no clear recollection of receiving such a statement within the first 2 months of his employment, he did concede in evidence that he accepted that these details inclusive of pension terms had issued.

The Statement was signed by the Complainant on 27 June 2018 with a follow up signature by the Respondent dated 3 July 2018.

I noted that the Pension booklet was dated September 2015

The Complainant submitted his complaint to the WRC on 18 February 2021. I have considered his oral and written submissions on seeking an extension of time in the case. The contravention, which the complainant refers arose in the statement of terms of employment referenced above.

Section 41(6) of the Workplace Relations Act, 2015 requires the complaint to arrive at WRC within 6 months of the date of contravention. I have some appreciation that the alleged contravention may well have accompanied the tenure of the statement of terms to its finality in May 2020.

However, I will consider what followed this conclusion of employment, in terms of raising the case before the WRC. 

I accept that the complainant was truly shocked to learn of the consolidation of his benefits to his benefits alone.

I have some understanding that the navigation of a conflict resolution route can be solitary and arduous for a lay litigant.

However, I find that the reasons advanced by the complainant for the delay in forwarding his case to WRC until 18 February 2020 do not meet the test for granting an extension for reasonable cause.

I find that the complainant has offered reasons for his delay, but these have not in my opinion excused the delay. I must conclude that it was open for him to bring his case to WRC much sooner than February 18, 2021. He did accept at hearing, that he had choices to make and had an earnest desire to resolve things locally, however, in making those choices, I find that he acted to his detriment in terms of the expedient and overarching statutory time limits affixed to his claim by the Workplace Relations Act, 2015.

I am not able to grant an extension of time in accordance with section 41(8) of the Workplace Relations Act, 2015 in this case. The claim is statue barred.

The case concludes on my decision on the Preliminary issue. I find for the Respondent.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 7 of the Terms of Employment (Information) Act,1994, requires that I make a decision in relation to the complaint in accordance with Section 3 of that Act.

I have found that the claim is out of time and thus statute barred.

Statement of Term of Employment / Pension terms