PAT242

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00046678 (CA-00048723-001).

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 18 February 2024. A Labour Court hearing took place on 28 May 2024. 

The following is the Court's Decision:

DECISION:

This matter comes before the Court as an appeal by Michael Gavagan (the Appellant) against a decision of an Adjudication Officer given in his complaint against Xerox (Ireland) (the Respondent) under the Pensions Act, 1990 (the Act). The Adjudication Officer decided that the complaint was not well founded.

The name of the Respondent entity is recorded, as it must be, in this decision in the identical manner to that which appears on the face of the decision of the Workplace Relations Commission under appeal.

The employment of the Appellant terminated by reason of redundancy in July 2009. The within complaint was made to the Workplace Relations Commission on 20th February 2022.

Summary submission of the Complainant

The Complainant submitted that the delay in making the within complaint had been due to misrepresentation by the Respondent. He provided the Court with certain conclusions of the Data Protection Commissioner which dealt with alleged infringements of relevant Data Protection by the trustees of the pension scheme of which he was a member and of the Respondent.

He relied upon the Act at Section 81E(7) to contend that his complaint was made within time.

He accepted that he had made the identical complaint against two other Xerox entities in the past but submitted that if he had known certain information which became available to him in 2022 at the time of those complaints he would have been able to make a stronger case.

Summary of preliminary submission of the Respondent

The Respondent submitted that the matter before the Court had been decided in 2016. The Complainant has previously brought complaints under Section 81E of the Act against Xerox (Europe) Limited and Xerox (Ireland) Pension scheme and was unsuccessful in each complaint.

In March 2022, the Complainant again unsuccessfully brought another complaint under Section 81E of the act against Xerox (Ireland) Pension Scheme. In that case this Court held as follows:

“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 Appellant to the Workplace Relations Commission on 4th May 2016.”

This Court in that appeal decided that the Complainant’s complaint against Xerox (Ireland) Pension Scheme was out of time.

In that decision, the Court decided that the matter was statute barred and that he was not entitled to claim that any misrepresentation had prevented or delayed him from making a claim to the Workplace Relations Commission until March 2022.

The Respondent submitted that the within complaint was both statute barred and res-judicata.

Relevant 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’ means—

 1. the person by whom it is referred, or

2. 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.

The hearing of the Court

The Appellant had sought the accommodation that he would sit in the view of speakers at the hearing saying ‘hearing problems’. The Court is satisfied that the Appellant was located in view of speakers at the hearing. No issue in this respect was raised by the Appellant during the course of the hearing.

No application to make a late submission of documents was made by either party at the hearing and neither was any such application refused by the Court at the hearing. The Appellant did, at the hearing, offer to provide the Court with fresh documentation which he said summarised his written submissions which had been provided in advance. The Court did not accept that documentation at the hearing on the basis that all documentation previously submitted by the Appellant had been read comprehensively and a summary was not required.

The Court is satisfied that all parties were provided at the hearing with a full opportunity to set out their submissions to the Court. The written submissions of the parties had been read in advance by the Court and the parties were informed of that at the hearing. Both parties were afforded the opportunity to comment on each other’s written submission at the hearing. Similarly, the Court had the opportunity at the hearing to question either party on their submission in order to secure clarity of understanding on the part of the Court as to the content of such submissions where necessary.

Neither party notified the Court at or before the hearing that it had not received the written submission of the other party in advance of the hearing.

Neither party called sworn witness evidence at the hearing when invited to do so by the Court.

The Court is satisfied that it was afforded a full opportunity to engage with both parties and to raise any query or question it wished to raise with both parties arising from their written and oral submissions.

Discussion and conclusions

The employment of the Complainant terminated in July 2009. 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 against another Xerox entity which was 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 20th February 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 20th February 2022, which was the date he made the within complaint to the Workplace Relations Commission.

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 factual matrix having been made in 2017 and not appealed.

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 20th February 2022. This is so because the Complainant made an identical referral to the WRC under Section 81 in 2016, albeit against another Xerox entity.

The Appellant, at the hearing of the Court, while accepting that he made the identical referral in 2016 against another Xerox entity, clarified to the Court that his contention now was 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.

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 complaint against another Xerox entity 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 previously means that the complaint of the Complainant is res-judicata.

Decision

The Court decides that the within referral was made out of time and that 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
CC	______________________
10 June 2024	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.