PAT211

1. Appeal of Adjudication Officer Decision No: ADJ-00021077 CA-00027781-002.

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 Worker appealed the Decision of the Adjudication Officer to the Labour Court on 2 December 2019. The appeal was heard by the Labour Court on 21 January 2021 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:

DECISION :

Introduction

This is an appeal by Deirdre Morgan (the Complainant) against the Adjudication Officer’s Decision ADJ-00021077 in her complaint that she was prevented from getting a gratuity payment that may be due to her from her pension scheme and that she was forced to take a pension. The complaint was made pursuant to the Pension Acts 1990-2014 (the Acts).

The Adjudication Officer did not uphold her complaint.

Background

The Complainant commenced employment with the Respondent as a teacher in September 2000. The Complainant was removed from office by the Minister in June 2015. It is the Complainant’s submission that while the Minister issued a letter on the 15^th June removing her from office that her employment continued after that date.

The Complainant lodged her claim with the WRC on the 15^th April 2019.

Complainant’s case

It is the Complainant’s case that she was looking to access an injury allowance/ gratuity from her pension in and around October/ November 2017 but found it difficult to get information. She retired in 2018 but did not want to retire. She sent in an ill health retirement form as this was the form that she was given. The Complainant outlined her complaint as follows,

a) she was not given information about the pension she could get

b) she did not get information about how to access injury gratuity. It was her understanding that she did not get the injury gratuity because she had not suffered a catastrophic injury.

c) that she had an unwanted pension imposed on her.

d) that she does not want to be put on a preserved pension which is what she has been given

e) that to retire her when she did not want to retire was victimisation under the Act

f) that the payment of the injury allowance is discretionary and who ever made the decision did not apply equal treatment

Respondent’s position

It is the Respondent’s position that the Complainant was not forced to retire in the normal course of events she would have access to her retirement benefits at age 65, However, in 2017 the Complainant wrote in looking to access the scheme and looking for the injury gratuity.

The injury gratuity applies to someone who has had an accident in work which results in a serious injury preventing them from returning to work. The Complainant whose employment had ceased in June 2015 did not meet the criteria for the injury scheme. The Complainant was provided with information and the forms to make an application under the ill-health retirement scheme.

One year later the Complainant returned the completed forms and started the process to claim ill-health retirement. Initially her application for ill-health retirement was refused but the Complainant appealed that decision and was successful in her appeal.

It was the Respondent’s submission that a person in receipt of the ill-health retirement pension is not prevented from returning to workplace once they are medically certified as being fit to resume work. It is the Respondent’s submission that the Complainant’s application for a pension was processed correctly.

The law

Section 66. Discriminatory grounds for the purposes of this Part.
(1) For the purposes of this Part, discrimination shall be taken to occur where—
(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds mentioned in subsection (2) (in this Part referred to as the ‘discriminatory grounds’) which—
(i) exists,
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,
(b) a person who is associated with another natural person (‘the other person’)—
(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and
(ii) similar treatment of the other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.
(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Part) are—
(a)
(i) that one is a woman and the other is a man, or
(ii) that one is a woman and the other is a man and they have the same [civil status] or both have family status, (in this Part referred to as ‘the gender ground’),
(b) that they are of different [civil status] (in this Part referred to as ‘the [civil status] ground’),
(c) that one has family status and the other does not (in this Part referred to as ‘the family status ground’),
(d) that they are of different sexual orientation (in this Part referred to as ‘the sexual orientation ground’),
(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Part referred to as ‘the religion ground’),
(f) that, subject to subsection (3), they are of different ages (in this Part referred to as ‘the age ground’),
(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Part referred to as ‘the disability ground’),
(h) that they are of different race, colour, nationality or ethnic or national origins (in this Part referred to as ‘the ground of race’),
(i) that one is a member of the Traveller community and the other is not (in this Part referred to as ‘the Traveller community ground’).
(3) The age ground applies only in relation to a person who is above the maximum age in respect of which there is a requirement under any enactment that he attend school.]

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’ ‘the complainant’ means—

(i) the person by whom it is referred, or

(ii) 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 Complainants submission is in effect that she wanted to get a gratuity from her pension scheme and not a pension. The Complainant is seeking to have the Court find under this piece of legislation that she should be given the injury gratuity despite not meeting the requirements for same. The Complainant completed the forms for the granting of an ill-health retirement pension and participated in the process to achieve same. When her initial application was rejected the Complainant successfully appealed that decision. The Complainant was granted the pension that she had submitted an application for. The Court finds that the Complainant has not identified any breaches of the Act and that her complaint is misconceived.

Determination

For the reasons set out herein, the Court is satisfied that the complaint is misconceived. The Decision of the Adjudication Officer is upheld. The appeal fails.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
MK	______________________
9 February 2021	Deputy Chairman