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FULL RECOMMENDATION
SECTION 81 (1), PENSIONS ACTS, 1990 TO 2014 PARTIES : LIMERICK CITY & COUNTY COUNCIL
(REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY) - AND - DERMOT CANTILLON (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Connolly Worker Member: Mr Hall |
1. An appeal of an Adjudication Officer's Decision No. ADJ-00011280.
BACKGROUND:
2. This is an appeal of an Adjudication Officer’s Decision made pursuant to Section 81 (1) of the Pensions Acts, 1990 to 2014. The appeal was heard by the Labour Court on 1 May 2019 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:
DECISION :
This is an appeal by Mr Dermot Cantillon (“the Complainant”) against the decision of an Adjudication Officer in his claim of discrimination on the age grounds in relation to the application of Circular 12/91, to included overtime he worked at weekends in his pension entitlements. The claim was before the Workplace Relations Commission under the Pensions Act 1990, as amended by the Social Welfare (Miscellaneous Provisions) Act, 2004 (“the Act as amended”). The Complainant made his referral to the Workplace Relations Commission on 13th October 2017. The Complainant retired from Limerick City & County Council (“the Respondent”) on 6th July 2009.
The Respondent raised a preliminary issue alleging that the Complainant’s claim was out of time and therefore the Court did not have jurisdiction to hear the case. Section 81E of the Act as amended requires a claim to be referred within six months or at a maximum twelve months from the date of termination of employment. In this case the claim was referred over eight years following the termination of the Complainant’s employment.
The Adjudication Officer found against the Complainant’s claim on the substantive grounds. The preliminary issue was not addressed by the Adjudication Officer.
The Complainant submitted that he was entitled to rely on Section 81E (7) of the Act which provides that where a delay in submitting the claim is caused by misrepresentation on the part of the Respondent the six months reference period can commence on the date on which the misrepresentation came to the Complainant’s notice.
Mr Ger Kennedy, SIPTU on behalf of the Complainant submitted that the Respondent misrepresented the Complainant’s pension entitlement as two employees of the Respondent who were younger that the Complainant, were treated differently when they retired early on ill health grounds. The Complainant retired at the normal retirement age of 65. Mr Kennedy submitted that the comparators mentioned benefitted under Circular 12/91 and this point only came to notice on 4th October 2017, therefore, he submitted that the Complainant’s claim should be regarded as in time.
Having regard to all the circumstances of this case, the Court is not satisfied that facts have been presented to substantiate the point that the two comparators mentioned were treated differently due to their age, and accordingly the Court is not satisfied that the Respondent misrepresented the Complainant’s pension entitlements. Therefore, the Court has come to the conclusion that the Complainant has not put forward a justifiable basis upon which the claim could be considered as being within time.
Accordingly, the Court has no jurisdiction to entertain the complaint. Therefore, the Decision of the Adjudication Officer is varied and the Complainant’s claim fails, albeit for different reasons than found by the Adjudication Officer.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR ______________________
20 May, 2019 Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.