Complainant

Respondent

Parties

PJ  Moran

Galway & Roscommon Education Board (GRETB)

Representatives

James Wallis

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-00051470-001

22/06/2022

The complainant submitted that the respondent never advised him that the additional years he worked after he turned 66 until his employment ended when he was 76 years of age would be discarded when calculating his pension entitlements.

The complainant submitted that it was unacceptable that the respondent failed to send on submissions in advance of the hearing as per the WRC guidelines.  The complainant said that they only received submissions on 10/8/2023 in advance of the hearing on 14/08/2023 and had not received the appendices.  When asked if they were seeking an adjournment or wished to have additional time to consider the documents the complainant advised they wished to proceed on the day and reserved the right to seek an adjournment if the need arose. 

Preliminary Issue:

In response to the respondent’s submission that the complainant was out of time, the complainant submitted that delays in submitting his complaint were due to various reasons.  These included that the complainant had made numerous attempts to have the matter resolved through bodies separate to the WRC but that these bodies and persons failed to deal with the complaint or direct the complainant to where his case could be dealt with.  Furthermore, the respondent failed to deal with the complaint, and it was not until 08/04/21 that the respondent advised the complainant of an appeals process.  The complainant had also suffered ill-health during the time and covid-19 had also impacted his submission of the complaints.

Substantive Issue:

The complainant commenced employment on 02/03/1988, his employment ended on 24/05/2019, the complainant’s date of birth is 03/03/1943 and the complaint was submitted to the WRC on 22/06/2022. 

The complainant submitted that he was very disappointed with his lump sum and pension entitlements when he retired as approximately 10 years’ service was discarded.  The complainant submitted that he raised his concerns with various departments and groups but that each group said it was not under their remit and that the complainant was left having to fend for himself because of these failures.  The complainant made contact with the Pensions Authority in 2021, the FSPO around that same time, the Ombudsman in July 2021 and the complaint was received by the WRC on 22/6/22 who also, it was submitted advised that the complaint might not come under their remit.  The complainant had been advised by the respondent that he could not appeal to the Department of Education, but this was not the case.  It was submitted that the employment ended on 24/5/2019 and not 30/12/2018 as submitted by the respondent and that the respondent’s own historic record of service reference that his end date was 29/05/2019. 

The complainant commenced employment 02/03/1988 with the respondent as a caretaker and his employment ended on 24/05/2019.  The employment ended owing to the complainant’s retirement due to ill health and the complainant was employed well beyond his 66th birthday until he was 76.  Throughout his employment the complainant made superannuation contributions and assumed that his pension entitlement would accumulate.  It was reasonable of the complainant to assume this as the respondent never advised him otherwise and continued to deduct superannuation and continued to deduct PRSI contributions until the complainant retired.

The complainant was shocked at the meagre pension he received when he retired and queried it with the respondent who advised him the calculations were correct.  He has never received an apology from the respondent for their failures to continue to deduct monies and their failures to advise him that the additional years worked would not be reckonable service.  On 08/04/21 the complainant was eventually advised of his right to appeal.  It was the complainant’s understanding that he was not the only person to work beyond the age of 66 and the complainant had a legitimate expectation based on over 31 years’ service that this service would be recognised.  It was submitted that the respondent was negligent and had a duty of care to the complainant and furthermore, the respondent has never contested the facts of the complaint.  The complainant outlined the cavalier attitude of the respondent in dealing with the matter.  It would appear that the complainant might have been required to retire in August after his 66th birthday in 2009 but the respondent continued to employ him and take the deductions which the complainant believed would contribute towards his pension.  The respondent never gave an option to the complainant of retiring after his 66th birthday and he was left to his own devices.  The respondent had an obligation to implement the legislation and failed in their duty and ignored the rules and regulations.  The respondent clearly had details of the complainant’s date of birth and allowed him to continue as an employee till he was 76 years old. It was submitted that the failures of the respondent also caused trauma to the complainant and was a health and safety issue.  The respondent should have had the knowledge and expertise to advise the complainant but failed to do so and the complainant had left school at a young age and would not have the relevant knowledge. 

As a public body it was submitted that the respondent had responsibilities including to ensure that the complainant is well compensated for their failures.  The complainant had been issued a contract of employment in Irish and the complainant would not have had sufficient understanding of the Irish language to understand it.  The respondent also contacted SCOPE regarding the correct PRSI contributions, but the complainant is at a loss to understand why this contact was made.  The Department of Education had contacted the respondent regarding the matter and set out Circular 49/2003, but the respondent failed to act on this circular until the Department of Education advised them of it.

Owing to the respondent’s errors and their failures to advise the complainant of changes in his circumstances, the respondent continued to deduct superannuation until he retired and continued to deduct Class A PRSI until the complainant retired.  As an employer they should have known their requirements but failed to abide by government regulations and it is an example of maladministration. They have furthermore shown no willingness to engage with the complainant on the matter.  The complainant suffered trauma, ill health and financial loss as a result of the failures of the respondent as well as proving tort of negligence.

The evidence of the complainant was that he had worked in the VEC and was never told that there were issues with continuing to work over the age of 66.  When he found out that he would not be entitled to pension entitlements based on his actual service that he had accrued he could not believe it and it upset him and he had financial commitments.  The complainant said that he had never received an apology regarding the failures of the respondent and that he was aware that another employee worked beyond the age of 66.  The complainant said that the respondent would have received a copy of his birth cert when he commenced employment.  The complainant said that he enjoyed his work and had hoped that he could return to work after a period of ill-health.  He was disappointed when he went to the respondent’s doctor, and she advised that regrettably she could not give him the all clear to return to work.  He advised of the ill health he has suffered since retirement, said that he enjoyed his work when he was there and that he was very disappointed with how he had been treated by the respondent.  Under cross examination he said that he was told that if he did not take the documents from the respondent there could be delays in processing his payments and he had commitments.

Case law cited included R(March) V Secretary of State for Health [2010] EWHC 765 Admin.

The respondent’s submission was received on 10/08/23 approximately 2 working days in advance of the hearing.  The Respondent said that they apologised for the delay in submitting this submission.

Preliminary Issue:

It was submitted that the complaint is out of time and that the complainant’s employment terminated on 30/12/2018 and the complaint was submitted to the WRC on 11/07/2022 and that furthermore the complainant has not been treated differently than any other employee and the complainant has been given equal pension treatment.  It was further submitted that the complainant was placed on the correct PRSI class since 2017.  The complainant was also refunded his contributions for service given after compulsory retirement age and no reasonable cause arises to allow for an extension of the time limits.

Substantive Issue.

The respondent submitted that the complainant commenced employment in 1988 as a caretaker and was admitted to the superannuation scheme on commencement of employment.  In accordance with Statutory Instrument 290/2015 the complainant’s compulsory retirement date was 31/08/2009.  When the complainant commenced sick leave in mid-2018 it was discovered that the complainant was aged 75.  An investigation commenced to ascertain the application of the relevant legislation for his retirement age.  The respondent had previously merged and there had been 3 different databases.  On 30/12/2018, the complainant’s employment ceased upon exhaustion of his sick leave and pension payment was due to be commenced on 31/12/2018.    A pension task group established that only service given up to 31/08/2009 could be included in calculation of pension and lump sum entitlements.  It was also determined that a refund of contributions paid from 01/09/2009 till 30/12/2018 should be processed.

A meeting with the complainant and officials from the department took place on 30/05/2019 where the complainant was provided with the retirement application form RETD1, and the complainant refused to take this.  This was later forwarded to the complainant and the complainant completed the form and returned it on 31/07/2019.  A net refund of €5,979.10 was paid to the complainant by way of refund.  The respondent also engaged with SCOPE to determine the complainant’s PRSI class.  The complainant raised an internal dispute resolution to the Department of Education and a determination was issued on 29/03/22 which found that the respondent acted in accordance with the rules of the pension scheme in their calculation of correct service.  Circular 49/2003 was referred to also and compensation of €1,684.15 was owing but the complainant advised that he did not wish this compensation to interfere with his claim under the WRC but in March 2023 the complainant proceeded with this compensation.  It was submitted that the claim is out of time, the complainant has not received unequal treatment and the complainant is not being penalised in circumstances amounting to victimisation.

The evidence of Ms O’Connor was that at the meeting in May 2019 with the complainant she went through the complainant’s lump sum, pension and retirement form.  She said he did not take it and was not happy with the calculation as not all his service was reckonable.  Her evidence was that after the meeting she sent out the form and the complainant completed it.  Under cross examination the witness said she could not recall how he came into the office and that she thought that he made an appointment by phone to come.  She said that she would have emailed the pension task group around the complainant’s circumstances in December 2018.  She could not recall exactly how she became aware of the complainant’s date of birth and that the respondent was not contesting what had occurred and apologised and confirmed that it was likely this was the first time that the respondent had apologised.

The evidence of Ms McDonald was that she was not aware if any one had apologised to the complainant for what had happened and that there may have been another employee who had worked beyond their 66th year.

It was noted that the complaint was received by the WRC on 22/06/2022 in the form of a letter and not through the WRC manual or online complaint form.  The complaint form is not a statutory form and there was no objection received from the respondent regarding using a letter to submit a complaint.

The respondent did not send in their submissions within the timelines provided for by the WRC.  The complainant raised his annoyance with the manner in which the respondent continued to deal with the complainant and what they regarded as the respondent’s disregard for him and it was noted that until the day of the hearing there had been no apology received from the respondent for the manners arising.  The complainant was given an opportunity to request an adjournment which they declined but they reserved the right to seek an adjournment if any matters arose during the hearing that required additional time for review by them.  The complainant was happy to proceed with the hearing which concluded on the day and no further time was requested by the complainant.

Preliminary Issue:

It was submitted by the respondent that the complaint was out of time.  The complainant commenced employment on 02/03/1988 and the complaint was received by the WRC on 22/06/2022.  The respondent submitted that the complainant’s employment ended on 31/12/2018 and the complainant submitted that the employment ended on 24/05/2019.  Even if it was determined that the employment ended on 24/05/2019 it was over three years later before the complaint was received by the WRC.  I note that the complainant referred to difficulties with understanding where the complaint needed to be sent to and advised of the various other departments and peoples, separate to the WRC, that the complaint had been sent to. 

The Labour Court has previously set out that the conventional approach to statutory time limits in employment rights cases and that the failure of an applicant to present a complaint in time deprives the Adjudication Officer of jurisdiction to hear the claim (UDD213 Beckton Dickinson Penel Ltd v Philip Goring).  The established test for “reasonable cause” was set out in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll Determination WTC0338; when deciding if an extension should be granted for reasonable cause within period not exceeding 12 months. 

“It is for the claimant to show that there are reasons which both explain the delay and afford an excuse from the delay. The explanation must be reasonable, that it 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 the circumstances known to the complainant at the material time. The claimant’s failure to present the claim within the six-month time limit must be due to the reasonable cause relied upon.”

There would not appear to be any provision within the legislation to extend for a period “exceeding 12 months”.

I also note that the complainant was seeking decisions from other bodies and this point was addressed in The National Museum of Ireland -v- Minister for Social Protection [2016] IEHC 135 where it was held that was no issue estoppel in respect of a decision under, in that case, the Social Welfare Acts and a claim under employment legislation that is brought to the WRC. A decision from another body may be persuasive, but it has no effect on a decision of an Adjudication Officer and there was nothing to prevent the complainant from submitting his complaint to the WRC, within the applicable time periods.

In all the aforementioned circumstances I find the applicable time period for making a complaint has long expired.  The complaint is out of time and is accordingly statute barred and I must dismiss the complaint.

In all the aforementioned circumstances I find the applicable time period for making a complaint has long expired.  The complaint is out of time and is accordingly statute barred and I must dismiss the complaint.

Pension, out of time