PAT231

Appeal of Adjudication Officer Decision No's: ADJ-00038838 (CA-00049166-001).

BACKGROUND:

This is an appeal of an Adjudication Officer’s Decision made pursuant to Section 81 (1) of the Pensions Acts, 1990 to 2014.  The appeal was heard by the Labour Court on 10 November 2023 in accordance with Section 44 of the Workplace Relations Act, 2015.  The following is the Court's Decision:-

DECISION:

This matter comes before the Court as an appeal by Michael Gavagan (the Complainant) against a decision of an Adjudication Officer in his referral of a case under the Pensions Act, 1990 (the Act) against his former employer Rank Xerox (the Respondent).

The Complainant contended that, in breach of the Act, he had been denied equal pension treatment in 2009. The case was referred to the Adjudication Officer on 11th March 2022.

The Adjudication Officer decided that the referral had been made out of time.

The Hearing

The Respondent submitted that two preliminary issues arose for decision in the within appeal. The appeal was manifestly out of time and additionally, the referral was res-judicata having regard to the fact that an identical complaint had been made in 2016 and decided by an Adjudication Officer of the Workplace Relations Commission in accordance with the statute.

The Complainant did not dispute that an identical complaint alleging identical breaches of the Act had been referred to the Workplace Relations Commission in 2016.

The Court proposed to the parties, in the interest of efficiency and on the basis that either preliminary issue had the potential to dispose of the entire matter, that it would hear the submissions of the parties in relation to these two preliminary issues and would proceed to decide one or both of those issues before deciding the substantive matter. Consequently, a further hearing of the parties in relation to the substantive matter would only be required if both preliminary issues were decided in the Complainant’s favour.

Both parties confirmed to the Court that they were agreeable to the Court proceeding in this manner.

The Law

The Act at Section 81E makes provision as follows:

81E. The forum for seeking redress

(1) A person who claims not to be receiving, or not to have received, equal pension treatment in accordance with this Part or to have been penalised in circumstances amounting to victimisation may, subject to subsections (3) to (6) and subsections (1) and (2) of section 81F, seek redress by referring the case to the Director General of the Workplace Relations Commission.

(2) […].

(3) If the grounds for such a claim arise in relation to a breach of the principle of equal pension treatment on the gender ground, the person making the claim may, subject to subsections (4) to (7) and section 81F(1), seek redress by referring the case to the Circuit Court instead of to the [Director General of the Workplace Relations Commission

(4) In this Part, in relation to a case referred under any provision of this section or section 81F—

‘the complainant’ ‘the complainant’ means—

1. the person by whom it is referred, or
2. (ii) where such a person is unable, by reason of an intellectual or a psychological disability, to pursue it effectively, his or her parent, guardian or other person acting in place of a parent;

‘the respondent’ means any or all of the following—

(a) the person who is alleged to have discriminated against the complainant in breach of the principle of equal pension treatment,

(b) the person who is responsible for admitting members to a scheme,

(c) the person who is alleged to be responsible for the victimisation and includes the trustees of an occupational benefit scheme.

(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.

Discussion and conclusions.

The employment of the Complainant terminated in July 2009. That is not in dispute between the parties. The Complainant alleges that the Respondent was, in 2009 or before, in breach of the Act at Section 81E.

It is common case that the alleged breach or breaches of the Act which form the basis for the within complaint are identical to the breach or breaches which formed the basis for a complaint referred by the Complainant to the Workplace Relations Commission (WRC) on 4th May 2016.

The Complainant, at that time, alleged that the delay in referring his complaint to the WRC until 2016 was due to misrepresentation by the Respondent and contended that, in accordance with the Act at Section 81E(7), the time permissible for the making of that complaint should be extended to 4th May 2016.

That case was decided on 3rd November 2017 by an Adjudication Officer of the WRC. The Adjudication Officer decided that the complaint had been referred to the WRC out of time. The decision of the Adjudication Officer was not appealed to this Court.

The Complainant submits that, on 25th June 2021, he became aware, as a result of a decision of the Data Protection Commissioner, of certain matters which he considers relevant to his contention that the Respondent was guilty of misrepresentations to him in 2009 or before, and that the delay in referring the within complaint to the WRC until 11th March 2022 was due to those misrepresentations by the Respondent.

He submits that the Court should, in accordance with the provisions of the Act at Section 81E(7), extend time for the making of the within complaint to the WRC to 11th March 2022.

The parties have made submissions on the matter of time limits applicable to the within appeal. The Respondent has also submitted that the matter is res-judicata having regard to the fact of a decision on the identical referral having been made in 2017. The Respondent has also submitted that a decision of the Data Protection Commissioner in 2021 did not expose or reveal misrepresentation by the Respondent to the Complainant which could reasonably be seen to have delayed him from making the within referral.

The Complainant submitted that the decision of the Commissioner provided him with information which would have allowed him to make a fuller and more comprehensive case in 2016 had he known of such matters at that time.

The provisions of the Act at Section 81E(7) do permit an extension of time without statutory limitation where

“a delay by the Complainant in referring a case under this section is due to any misrepresentation by the Respondent”.

In the within matter, it cannot be held that any alleged misrepresentation by the Respondent, which the Complainant submits he became aware of only in 2021, prevented or delayed him in referring a case under section 81 of the Act until 11th March 2022. This is so because the Complainant made the identical referral to the WRC under Section 81 in 2016.

The Complainant, at the hearing of the Court, while accepting that he made the identical referral in 2016, clarified to the Court that his contention now was not that a delay in making the within referral was due to a misrepresentation by the Respondent. He stated that it was his submission that the alleged misrepresentation resulted in him being unaware of certain information which, if he had known it at the time, he could have utilised to make a fuller and more comprehensive case to the Adjudication Officer deciding his 2016 referral, and particularly so as regards the application of Section 81E(7) to that 2016 referral.

The Court concludes that no alleged misrepresentation by the Respondent which became known to the Appellant in 2021, could be taken to have delayed the Appellant in referring the within case until 2022. This is self-evidently the case because the Appellant did refer the identical case to the WRC in 2016.

In those circumstances, and having regard to the specific provisions of the Act at Section 81E which make provision only for an extension of time when the delay is due to misrepresentation, the Court concludes that it is not permissible to construe subsection (5) of Section 81E of the Act as if the reference in it to the date of termination of relevant employment were a reference to 25th June 2021, being the date the Complainant submitted that he received the decision of the Data Protection Commissioner which he contends grounds his submission as regards time limits applicable under the Act. 

Having reached this conclusion the Court need not consider further the submissions of the parties including as to whether the fact of an identical case having been referred and decided in 2017 means that the complaint of the Complainant is res-judicata.

Decision

The Court decides that the within referral was manifestly out of time and the within appeal must therefore fail.

The decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
TH	______________________
23/11/23	Chairman