PAT243

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00047807 (CA-00053973-001)

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 2004 on 22 September 2023. A Labour Court hearing took place on 15 October 2024.

DECISION:

This is an appeal against a Decision of an Adjudication Officer (number ADJ-00047807, CA-00053973- 001), under the Pensions Act, 1990 (the Act).

The complaint was lodged to the Workplace Relations Commission (WRC) on 2 December 2022. The Adjudication Officer held that the complaint was not well founded. That decision was appealed to the Court.

Preliminary matter – Application to Anonymise Decision

The Appellant made an application to anonymise the decision of the Court on the basis that the matter under appeal referenced certain sensitive personal data relating to her medical status. The Respondent did not oppose the application.

The Act at Section 44(7) provides as follows:

(7) Proceedings under this section shall be conducted in public unless the Labour Court, upon the application of a party to the appeal, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.

The Court decided that the release of such sensitive personal data constituted special circumstances and, in accordance with section 44(7) of the Workplace Relations Act 2015, decided to conduct the proceedings otherwise than in public and to anonymise this decision.

Preliminary Matter – Time Limits

The Respondent raised a preliminary matter in relation to the time limits under the Act for lodging a complaint. As the matter of time limits goes to the Court’s jurisdiction to hear the appeal it decided to hear from the parties on that preliminary matter in the first instance. 

Position of the Respondent

The complaint was submitted by the Appellant more than three and a half years after her employment relationship with the Respondent ended. The complaint is manifestly out of time and so statute barred.

It has been settled in other determinations of the Court that the Claimant’s employment terminated on 20 May 2019. The relevant cognisable six-month period for the complaint runs from 20 May 2019 (the date of termination of the Appellant’s employment) to 19 November 2019. It must follow that any claim filed after that date is outside the cognisable six-month period.

Position of the Appellant

No time limit arises due to misrepresentation by the Respondent. The Respondent relies on the purported termination of the Appellant’s employment, and arbitrarily connects that purported termination to the payment of the purported pension since May 2019. The Respondent inferred that the Appellant’s employment was terminated on imputed disability grounds and retirement on psychiatric incapacity grounds. There is no delay in lodging the complaint under the Act as the Appellant rejected the retirement on medical grounds.

Misrepresentations and omissions made by the Respondent are detailed in the Respondent’s submission and by letter dated 20 May 2019 signed by the General Secretary Manager. The Respondent changed her PRSI status from PRSI Class A to PRSI Class M on 30 June 2019, to facilitate the payment of a pension, and that misrepresentation occurred six weeks after the purported termination date. Misrepresentation by the Respondent is sufficient to remove the limitation period.

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.”

Section 81E(7) states:

“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".

Deliberations and Findings

Rule 54 of the Labour Court Rules 2024 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 proposed to adjourn the hearing to decide on the preliminary matter regarding its jurisdiction to hear the appeal. It advised the parties that if the Court 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 out of time and statute barred. The parties agreed to the approach proposed by the Court.

The Court has given careful consideration to the written and oral submissions made to the Court on the issue of time limits.

Section 81E of the Pensions Act 1990, as amended, specifies the time limits that apply for lodging a complaint under the Act. Subsection (5) specifies that a claim for redress regarding 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 to ground a claim under the Act an Appellant must lodge a complaint within six-months of the termination of his or her employment. 

The six-month timeframe may be extended where a delay in lodging a complaint by an Appellant is due to any misrepresentation by the Respondent. In those circumstances the date of termination of employment is construed as the date on which the fact of misrepresentation came to the Appellant’s notice. The six-month timeframe may be further extended by a period of 6 months if the failure to present the complaint in time was due to reasonable cause.

The Respondent’s position is that the complaint lodged by the Appellant is manifestly out if time having regard to the statutory time limits.

The Appellant contends that the time limits do not apply where there is misrepresentation by the Respondent. In reply to questions from the Court the Appellant advised that she relies on misrepresentations by the Respondent which she contends occurred on 30 June 2019 when the Respondent changed her PRSI status from Class A to Class M to facilitate the payment of a pension.

By the Appellant’s own submission, the alleged misrepresentations that she relies upon to ground her complaint under the Act occurred outside the time limits specified at Section 81E of the Act 1990. No adequate explanation was provided to the Court to explain what prevented the Appellant lodging a complaint to the WRC for three and a half years after the contended misrepresentation on 30 June 2019.

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 or, in the alternative, the date that any misrepresentation by the Respondent came to the Appellant’s notice. The six-month timeframe may be extended to 12 months if there is reasonable cause.

This appeal was not lodged within the statutory 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.

In the circumstances of this case, the alleged contravention of the Act occurred outside the time limits specified at Section 81E 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.

Decision

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
AR	______________________
24 October 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary.