Complainant

Respondent

Parties

Karen  Black

Department of Education

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

Ms. MP Guinness, instructed by the Chief State Solicitor’s Office  

Act

Complaint 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-00059230-001

04/10/2023

The Complainant commenced employment as a teacher on 1st September 2009, with this employment ending on 31st April 2012.

On 4th October 2023, the Complainant referred the present complaint to the Commission. Herein, she alleged that the Respondent, being the paymaster in respect of her former employment, had unreasonably refused to enter her onto a particular pension scheme. In responding to this complaint, the Respondent submitted that the relevant employment had ended some elven years prior to the referral of the complaint, and that as consequence, the matter was statute barred.

A hearing in relation to this matter was convened for, and finalised on, 18th June 2024. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

At the outset of the hearing, the preliminary point as to jurisdiction was discussed between the parties. In circumstances whereby this matter may be determinative of the entire set of proceedings, this will be considered in advance of the substantive matter.

At the outset of the hearing, the Respondent submitted that the present complaint is statute barred for the purposes of the impleaded Act. In this regard, they noted that the Complainant’s final day of employment was 31st August 2012. Given that this predated the referral of the present complaint by a period of some eleven years, they submitted that the complaint is statute barred even with the application of any extensions provided for by the relevant legislation.

By response, the Complainant accepted that her final date of employment was over eleven years prior to the referral of the complaint. While this was the case, she submitted that she sought entry onto the pension scheme operated by the Respondent and was refused same within six months of the referral of the complaint.

The present matter involves an allegation on the part of the Complainant, that the Respondent unreasonably refused her entry onto a certain pensions scheme under their control. While the Respondent reserved their position in respect of this allegation, they submitted that the complaint was statute barred and could not proceed.

In this regard, Section 81E(5) of the Pensions Act 1990 (as amended by the Social Welfare Miscellaneous Provisions Act 2004) provides as follows,

“…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.”

Subsection 6 goes on to provide that,

“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.”

Having regard the to wording above, it is apparent that a complaint under this section can only be referred within six or, potentially, twelve months of the alleged breach. The initial subsection quoted above provides that this time period commences from the date on which the employment ends.

In the matter of Galway and Roscommon Education Board -v- John Moran PAT241, the Labour Court, in considering the application of the above-mentioned time limits, held that,

“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.”

In circumstances whereby it is common case that the Complainant’s employment ended well in excess of one year prior to the referral of the within complaint, it is clear that the complaint is out of time for the purposes of the impleaded Act. As a consequence of the forgoing, I find that no breach occurred within the cognisable period for the purposes of the Act, and that as a consequence of the same, the complaint is not well-founded.

I find that no breach occurred within the cognisable period of the purposes of the present Act. As a consequence of the foregoing, I find that the complaint is not well-founded.

Pensions, Breach, Anonymous