Complainant

Respondent

Parties

Eamonn  Winters

Eircom Limited

Complainant

Respondent

Anonymised Parties

Representatives

  Self

 Tom Mallon BL

Act

Complaint/Dispute Reference No.

Date of Receipt

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-00043902-001

05/05/2021

The complainant alleges that he, as a pensioner, has been treated less favourably then the Respondent’s current employees in relation to his pension entitlements.

The Respondent argues that the complaint is statute barred.

Mr Ws’ complaint form was received by the Workplace Relations Commission on 5 May 2021.

The date submitted by the complainant as the most recent date of discrimination is the 1 July 2018

Section 81E(5) of the Pensions Act 1990, as amended by the Social Welfare (Miscellaneous Provisions) Act 2004 (the “Act”) states that:

“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.”

Section 81E(6) of the Act states that:

“On application by a complainant, the Director, 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 period not exceeding 12 months as is specified in the direction, and where such a direction is given, this Part shall have effect accordingly.”

Section 81E(7) of the Act goes on to state that:

“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.”

Misrepresentation is defined by Murdock and Hunt’s dictionary of Irish law at page 1092 as:

“ a statement or conduct which conveys a false or wrong impression. A misrepresentation may be fraudulent, negligent or innocent. As regards contact, a misrepresentation to be operative must be a false representation, it must be one of fact, it must be intended to be acted upon and it must actually mislead and induce a contract.”

A misrepresentation must convey a false or wrong impression. There is no false or wrong impression pleaded by the Complainant in any way. What he does say is that “I didn’t get a document” That cannot amount to a misrepresentation.  

The Complainant’s employment with the respondent terminated on 31 July 2009. 

The complainant lodged an appeal in relation to this pension to the department of expenditure and public reform approximately two years ago.

The complainant is also replying on some alleged wrongdoings which occurred after the date of the filing of his claim in an attempt to bring this matter within the statutory time period allowed. As a matter of law, he is barred from doing so.

The respondent wrote to the WRC by letter dated 1 July 2021 noting the legislative time limits for bringing a complaint under the Act and submitting that Mr Ws’ complaint should be dismissed by the Workplace Relations Commission as it was wholly out of time.

Mr W responded by letter dated 2 July 2021 and sought to rely on Section 81E(7) of the Act. In his correspondence, he referred to a Joint Conciliation Council Agreement entered into between the respondent and the Trade Union Alliance in July 2018, JCC AR 628, and stated that the existence of this agreement only came to his attention in April 2021.

The Joint Conciliation Council is the formal internal industrial relations mechanism that relates to the collective bargaining process for employees. Mr W ceased to be an employee with the respondent in 2009, 9 years prior to the JCC AR 628 being agreed. 

In his letter of 2 July 2021, Mr W himself stated that “…as an ex-employee I would not have been circulated with copy of this agreement.” Collective Agreements reached between the respondent and the Trade Union Alliance relate to current employees only. As a former employee of the respondent, he would not be informed of or be provided with a copy of such agreements and he accepts this fact in his own correspondence of 2 July 2021.

In circumstances where Mr W was not a party to the agreement reached nor was there any reason for him to be informed of same, it cannot be said that there has been any misrepresentation on the part of the respondent in not furnishing him with a copy of the JCC AR 628.

The mere fact that this information only came to his attention in April 2021 does not give rise to any misrepresentation which entitles Mr W to an extension of the time limit for seeking redress as set out under Section 81E(7) of the Act and, accordingly, the Respondent respectfully  submits that Mr Ws’ complaint should be dismissed by the Workplace Relations Commission on the basis that it is wholly out of time. 

The respondent wrote to the WRC on the 1st July, 2021 arguing that the claim was statute barred and their application was unsuccessful.

The complainant is relying on Section 81 E(7) of the Pensions Act 1990 as amended by the Social Welfare ( Miscellaneous Provisions) Act 2004 claiming that there has been a misrepresentation and therefore giving the WRC jurisdiction to hear and determine the claim.

Since 1984 the respondent undertook to have pensionable pay increase parity with pension increases up to 2008. There then was the defined benefit Accord in March 2010 where pensionable pay was spilt into pensionable and non- pensionable but still the principle of parity of the percentage pensionable pay increase for active employees and the percentage increase for pensions paid to pensioners was maintained in that agreement up to the 30th June 2018. Thereafter there seems to be a problem with the figures in that the pensionable pay increases from the 1st July 2018 were higher than the percentage pension increases paid to pensioners. Following on from that discovery the complainant commenced some investigation into the matter. It is clear from the figures that the parity promise had been broken in 1st July 2018. Why that was, was not known to the complainant until June/July 2021.

The complainant alleges that pensioners are been discriminated against by the Respondent in that they are being treated less favourably that the current employees of the respondent in relation to their pension payments.

The complainant’s complaint was received by the Workplace Relations Commission on the 5th May 2021. In that complaint form, the Complainant notes the most recent date of discrimination as the 1st July 2018. He seeks to rely on the provision set out in Section 81E(7) of the Pensions Act 1990, as amended by the Social Welfare (Miscellaneous Provisions) Act 2004 (the “Act”) stating that that section gives me, the Adjudicator jurisdiction to hear and determine his claim.

Section 81 E (7) gives powers to extend the time period for hearing claims beyond the six months set out in S81 E (5) and the twelve months set out in S81E (6) in circumstances where the person or entity seeking to rely on it can prove a misrepresentation.

S 81E(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.”

Misrepresentation is defined as “a statement or conduct which conveys a false or wrong impression. A misrepresentation may be fraudulent, negligent or innocent. As regards contract, a misrepresentation to be operative must be a false representation, it must be one of fact, it must be intended to be acted upon and it must actually mislead and induce a contract”.

The complainant’s written submissions and his evidence at the hearing did not and do not disclose any misrepresentation either fraudulent, negligence innocent or at all. The height of the complainant’s argument in that regard is that he was not given certain documents. He does in that regard accept that as he has not been an employee of the respondent since July 2009 he would not have expected to have been given any such documents. Not being given documents falls far short of that required to prove a misrepresentation. It is on that basis that I find that the complainant has failed to establish a misrepresentation and therefore cannot rely on the provisions of Section 81E(7). Therefore, I can only conclude that I do not have jurisdiction to hear and determine the complaint as same is statute barred.

The complaint is statute barred.

Pensions, less favourable treatment, statutory time limits, misrepresentation.