ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00047807

Parties:

	Complainant	Respondent
Anonymised Parties	An Individual	A Healthcare Provider

Representatives

Complaint(s):

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-00053973-001	02/12/2022
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-00054015-001	05/12/2022
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-00054034-001	07/12/2022
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-00054098-001	12/12/2022
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-00055348-002	01/03/2023
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-00055144-001	17/02/2023

Date of Adjudication Hearing:

Workplace Relations Commission Adjudication Officer: David James Murphy

Procedure:

The Complainant has previously brought an array of cases against the Respondent via the Workplace Relations Commission and, on appeal, to the Labour Court.

The Workplace Relations Commission issued decisions in September 2019 and November 2020.

The Labour Court issued decisions in December 2021 and July 2022.

Another series of WRC complaints were referred by the Complainant in 2020, 2021 and 2022. These were considered by me in a hearing in January 2023. Decisions were issued by me in May 2023.

The Complainant has now sought to advance another series of complaints against the same Respondent. These were referred to me in advance of a hearing scheduled for the 7th of November 2023.

A number of complaints were advanced under the Employment Equality Act and Safety Health and Welfare at Work Act. In the circumstances, I decided to dismiss these complaints as frivolous or vexatious, as provided for under Section 42 of the Workplace Relations Act 2015 and 77A of the Employment Equality Acts. My reasoning for this is set out in those decisions.

The complaints considered in this decision were submitted under the Section 81E of the Pensions Act 1990 and were submitted alongside some of the other complaints under the Safety, Health and Welfare at Work Act and Employment Equality Acts.

I requested that the WRC assign a new ADJ number and collate these Pensions Act complaints together. The Pensions Act is a fundamentally different piece of legislation as it does not fall under Section 41 of the Workplace Relations Act 2015 nor does it explicitly allow an Adjudication Officer to dismiss a complaint as frivolous or vexatious. As such I wanted to consider whether the complaints under this act should proceed to hearing separately.

Background:

The Complainant worked for the Respondent from March of 2003 until 20th May 2019 when she was placed on ill health retirement.

The Complainant challenged this decision by bringing complaints under a variety of acts, some complaints were appealed to the Labour Court. Decisions issued in these cases and appeals in 2019, 2020, 2021 and 2022.

While these complaints were being considered and even after they had been the determined the Complainant continued to refer complaints to the WRC in 2020, 2021 and 2022. These complaints were referred to me and a hearing was held in January 2023. Decisions issued in these cases in May 2023. These decisions are ADJ-00030360, ADJ-00032093, ADJ-0032418, ADJ-00040029, ADJ-00037341, ADJ-00037340, ADJ-00037339 and ADJ-00035260, ADJ-00036391, ADJ-00040031.

It has been determined by both the WRC and Labour Court that the Complainant’s employment relationship with the Respondent ended on 20th of May 2019. At various stages the Complainant has sought to assert that she is on a form of suspension as she believes the decision to place her on retirement was not properly arrived at. This has already been considered by the WRC and rejected.

These complaints were submitted by the Complainant on the 7th and 12th of December 2022 and 17th of February 2023 around three and a half years after her employment relationship with the Respondent ended.

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

As far as I am aware the Complainant has not brought complaints under this act against the Respondent before. As such, unlike the other complaints these complaints do not necessarily concern matters which have already been determined by the WRC and Labour Court.

However, one issue which has been determined exhaustively by the WRC and Labour Court is that the Complainant ceased being an employee of the Respondent in May 2019.

Section 81E of the Pensions Act provides that a person who alleges that they have not received equal pension treatment or that they have been victimised under the act can refer a complaint to the WRC.

Section 81E goes on to state that:

(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 then 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.

From a review of the above and the previous decisions concerning these parties it is clear that I do not have jurisdiction to consider these complaints. They were lodged more than 12 months after the Complainant’s date of termination. The Respondent has been entirely clear about the Complainant’s date of termination throughout these matters and as such there could be no misrepresentation on their part which could actually affect the Complainant’s ability to bring a complaint earlier.

While this act does not contain any explicit power allowing an Adjudication Officer to dismiss a complaint at any time it also does not require an Adjudication Officer to hold a hearing. While I accept that the normal course of action would be for a hearing to be held to consider these matters this is an usual situation in that two separate divisions of the Labour Court have already determined that the Complainant’s employment ended on the 20th of May 2019. I have previously rejected the Complainant’s argument that she remains on some sort of paid suspension.

I note the comments of O’Donnell J in Nowak v Data Protection Commissioner [2016] IESC 18:

“… Any public decision maker must have the capacity to screen claims and exclude at an early stage those which are plainly misconceived. If this form of decision-making triage cannot be carried out, and all complaints must proceed through to a formal determination, then the system becomes overloaded, and will grind to a halt. This is wasteful of time and resources, and a real injustice to those with substantial complaints.”

With reference to the previous decisions issued regarding these parties, it is entirely clear that I do not have jurisdiction to consider the substantive complaints submitted by the Complainant under this act. As such I believe the appropriate course of action is for me to issue a decision rather than take up the parties and the WRC’s time with an unnecessary hearing.

I have previously decided to anonymise decisions between the parties at the request of the Complainant. I have decided to follow this same course of action in this decision, not least because I have had to refer to anonymised decisions in this decision.

Decision:

Part VII of the Pensions Acts, 1990 – 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under that Part.

CA-00053973-001