RPS/23/7 | DECISION NO. PAT241 |
INDUSTRIAL RELATIONS ACTS 1946 TO 2015
SECTION 81E OF THE PENSIONS ACT, 1990 AS AMENDED BY THE SOCIAL WELFARE (MISCELLANEOUS PROVISIONS) ACT 2004
PARTIES:
(REPRESENTED BY O'FLYNN EXHAMS SOLICITORS)
AND
MR PATRICK JOSEPH MORAN
(REPRESENTED BY MR JAMES WALLIS)
DIVISION:
Chairman: | Ms Connolly |
Employer Member: | Ms Doyle |
Worker Member: | Ms Tanham |
SUBJECT:
Appeal of Adjudication Officer Decision No's: ADJ-00039333 (CA-00051470-001)
BACKGROUND:
The Worker appealed the Adjudication Officer Decision to the Labour Court in accordance with Section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2024 on 29 September 2023. A Labour Court hearing took place on 28 March 2024.
DECISION:
This is an appeal by Mr PJ Moran against a Decision of an Adjudication Officer (number ADJ-00039333), under the Pensions Act, 1990 (the Act) against his former employer Galway & Roscommon Education Board (GRETB).
Mr Moran referred his complaint to the Workplace Relations Commission (WRC) on 22 June 2022. The Adjudication Officer found that the complaint was out of time and therefore statue barred.
Mr PJ Moran appealed that decision to the Court. A Labour Court hearing was held in Galway on 28 March 2024.
Preliminary Matter
A preliminary matter was raised by the Respondent in relation to the time limits under the Act for lodging a complaint. The Court advised the parties that as the matter of time limits goes to the Court’s jurisdiction to hear the appeal it would hear from the parties on that preliminary matter in the first instance.
Position of the Appellant
Mr James Wallis, on behalf of the Appellant, submitted that the matter before the Court is a long and drawn-out saga. Mr Wallis fully accepted that the complaint was lodged outside the time limits set down in the Act. He also accepted that he cannot argue that the complaint was made within those statutory time limits.
Mr Wallis strongly urged the Labour Court to set aside the time limits under the Act and instead consider issues such as negligence, duty of care, contract law, natural justice, moral turpitude, and the imbalance of power. He submitted that where public bodies are at fault, victims should not suffer.
The Appellant never received any guidance or information in relation to his pension entitlements. The case satisfies the criteria set out in Cementation Skanska asthe Appellant immediately expressed his dissatisfaction with his pension entitlement to the Respondent when his employment ended. He then attempted to find a body to resolve the issue. During this time the Appellant suffered poor health. He had open heart surgery and was on a waiting list for medical treatment.
The Appellant contacted his union and a local TD in an attempt to resolve matters. He approached various statutory bodies, including the Ombudsman, the Pensions Authority, and the Social Welfare Appeals office. The Appellant was sent from billy to jack. No advice was offered to him.
He lodged his complaint to the Workplace Relations Commission once a determination was made by the scope section of the Department of Social and Family Affairs, confirming his employee status. The WRC eventually agreed to take on his case.
Mr Wallis questioned why the WRC or Labour Court would accept a case if there was an issue relating to time limits. He submitted that the WRC and the Labour Court have expertise in relevant legislation, and it is reasonable to expect that the case would not have been accepted by the WRC or Labour Court if statute barred.
Position of the Respondent
Mr William Hanley, Solicitor, on behalf of the Respondent, relied on his written submission to the Court.
The Appellant’s employment ended on the 30 December 2018, with his pension payments beginning the following day. His complaint under the Act was submitted to the WRC on 22 June 2022.
The Appellant contends that his employment ended on 24 May 2019. Even if it were accepted that the employment ended on the 24 May 2019, a gap of over 3 years arose from the ending of the employment to when the Appellant submitted his complaint.
A failure on the part of an Applicant to present a complaint in time deprives the adjudication officer of jurisdiction to hear the claim. The established test for “reasonable cause” was set out in Cementation Skanska (formerly Kvaerner Cementation) v Carol 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 for which both can explain the delay and afford an excuse for the delay. The explanation must reasonable, that it is to say that 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 Claimants failure to present the Claim within the 6-month time limit must be due to the reasonable cause relied upon.”
The Respondent further relies on the case of Michael Gavigan v XEROX (Ireland) Pension Scheme; Anthony McCabe v Bolden Tara Mines Limited; and James Okorie v Green Isle Foods in support of its position.
There was nothing to prevent the Appellant from submitting his complaint to the WRC within the applicable time periods. There is no provision within the legislation to extend for a period exceeding 12 months which, in all circumstances, makes the Appellants complaint statute barred. The Appellant’s complaint is statute barred and should be dismissed.
Adjournment
The Court adjourned briefly to consider the preliminary matter raised in relation to time limits.
Rule 34 of the Labour Court Rules provides that: -
“The Court may, in its discretion, give a preliminary ruling on any aspect of the case where it is satisfied that time and expense may be saved by the giving of such a ruling and/or where it has the potential to be determinative of the case”.
The Court reconvened and advised the parties that it proposed to adjourn the hearing and decide on the preliminary matter regarding its jurisdiction to hear the appeal. It advised the parties that no decision had yet been made on that matter and it would need to consider the arguments of both parties. If it decided that the appeal was lodged within time, a further hearing would be scheduled, and the Court would proceed to consider the substantive appeal. If the Court decided that the complaint was lodged outside the time limits set down in the Act, the appeal would be found to be out of time and statute barred.
Mr Wallis became agitated and argued that if there was an issue with time limits such that the appeal was statute barred the matter should never have been scheduled for hearing. Mr Wallis asked that the Court also hear them on the substantive issue. The Court declined to do so on the basis that it would deal with the preliminary issue first as a decision on this had the potential to be determinative of the case. The Court restated that no decision on that matter had been made by the Court. After a number of attempts by Mr Wallis to raise the substantive issues, the parties were advised that the Court was adjourning the hearing, and the parties were asked to leave the room.
Relevant Law
Section 81E (5) of the Pensions Act 1990 (as amended by the Social Welfare Miscellaneous Provisions Act 2004) 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) states:
“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 where 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 affect accordingly.”
Deliberations
The Court has given careful consideration to the written and oral submissions made to the Court on the issue of time limits.
Section 81E (5) of the Pensions Act 1990, as amended, specifies the time limit that applies for lodging a complaint under the Act. That provisions specifies that a claim for redress regrading a breach of the Act cannot be referred “after the end of the period of 6 months from the date of termination of the relevant employment”.
In other words, the Act requires that in order to ground a claim under the Act an Appellant must lodge a complaint within six-months of the termination of his or her employment.
That timeframe may be extended by a further period of 6 months if the failure to present the complaint in time was due to reasonable cause.
In this case, the complaint under the Act was lodged to the Workplace Relations Commission on 22 June 2022. Accordingly, the relevant period for initial consideration by the Court is confined to the period from 23 December 2021 to 22 June 2022 and the Court must ascertain, in the first instance, what alleged contraventions of the Act occurred within that six-month timeframe.
The Appellant submits that his employment terminated on 24 May 2019. That date is contested by the Respondent who contends that the employment terminated on the 30 December 2018. Notwithstanding the contested termination date, the Appellant’s representative fully accepts that the complaint was lodged over three years after the employment ended, which is outside the six-month time limit (and the twelve-month time limit) set down in the Act.
It is fully accepted by the Appellant’s representative that no argument could be made that the complaint was made within those statutory time limits.
The Appellant’s representative urged the Court to take a wider view than that specified in the legislation and extend the time limits for consideration of his complaint back to July 2019 when he submitted a complaint to the scope section of the Department of Social and Family Affairs, as he lodged his complaint to the Workplace Relations Commission once a determination was made by that Department confirming his employee status.
While the Court has sympathy for the predicament that the Appellant found himself in, the Labour Court is a creature of statute, and its powers and duties are derived solely from statute. In this case, the Court’s jurisdiction is confined to assessing breaches that occurred within the time limits specified under the Pensions Act. The maximum time limit allowed is 6 months from the date of termination of employment, which may be extended to 12 months if there is reasonable cause. This appeal was not lodged within the time limits allowed. The Court cannot assume a jurisdiction which is not conferred to it by statute and does not have a ‘discretion’ to vary the time limits set down in relevant statutes.
This Court has regularly found that ignorance of the law cannot excuse the lodging of complaints outside the statutory time limits that apply.
In the circumstances of this case, it is clear that the alleged contravention of the Act occurred outside the time limits specified at Section 81E (5) of the Pensions Act 1990, as amended.
A failure on the part of an Appellant to present a complaint in time deprives the Adjudication Officer, and this Court on appeal, of jurisdiction to hear the claim.
As a result, the Court finds that it has no jurisdiction to hear the complaint.
Determination
The complaint is statute barred.
The appeal is not allowed.
The decision of the Adjudication Officer is upheld.
The Court so determines.
Signed on behalf of the Labour Court | |
Katie Connolly | |
TH | ______________________ |
29 April 2024 | Deputy Chairman |
NOTE
Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.