Boliden Tara Mines Ltd v Anthony Mc Cabe (Represented by Services Industrial Professional Technical Union)

• Jurisdiction: Ireland
• Judgment Date: 24 January 2020
• Judgment citation (vLex): [2020] 1 JIEC 2405
• Docket Number: FULL RECOMMENDATION DETERMINATION NO.EDA208 ADJ-00006004 CA-00008229-002
• Date: 2020
• Year: 2020
• Court: Labour Court (Ireland)

PARTIES:

Boliden Tara Mines Limited

and

Anthony Mc Cabe (Represented by Services Industrial Professional Technical Union)

FULL RECOMMENDATION

ADE/18/75

DETERMINATION NO.EDA208

ADJ-00006004 CA-00008229-002

Labour Court

DIVISION:

Chairman: Mr Geraghty

Employer Member: Ms Doyle

Worker Member: Mr Hall

SECTION 77 (12), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015

SUBJECT:

1 1. Appeal of Adjudication Officer's Decision No(s). ADJ-00006004 CA-00008229-002

BACKGROUND:

2 2. The Claimant appealed Adjudication Officer's Decision ADJ-00006004 to the Labour Court in accordance with Section 77(12) of the Employment Equality Acts, 1998 to 2015. A Labour Court hearing took place on 16 January 2020. The following is the Determination of the Court:

DETERMINATION:

Summary of Background

3 This is an appeal by Mr. McCabe, ‘the Complainant’ of a decision by an Adjudication Officer, ‘AO’, under the Employment Equality Acts 1998 to 2015, ‘the Acts’. The AO decided that the complaint under the Acts, that Boliden Tara Mines, ‘the Respondent’, had discriminated against the Complainant on grounds of disability, was taken outside the time limits specified in s.77 of the Acts and was, therefore, statute barred.

4 The Complainant had been an employee of the Respondent and was a member of the Respondent's superannuation scheme. From 1984 onwards, the Complainant had also been a member of the associated Income Continuance Scheme, (ICS). In 1991, the Complainant was certified medically as being unfit to work for the Respondent and the Complainant was written to on 29 October 1991 to confirm the acceptance by the Respondent of this assessment. The Complainant ceased work at that point. Under the ICS, the Complainant received a benefit from then. This included a payment by the ICS provider of a superannuation contribution to the Respondent's superannuation scheme until 12 September 2016, when the Complainant reached normal retirement age.

5 In the meantime, in 1998, a considerable improvement in the Respondent's superannuation scheme was negotiated. The benefits under the scheme ceased to be integrated with the State pension arrangements and the reduction in the superannuation benefits to take account of this integration was no longer applied. This improvement was not extended to the Complainant when he reached retirement age.

6 The Complainant lodged a complaint under the Acts on 17 November 2016. The Complainant contends that he remained an employee until he reached his retirement age and was entitled to all improvements in the superannuation scheme applied to other employees.

7 The Respondent disputes this. Accordingly, the Respondent argues that the complaint submitted on 17 November 2016 is outside the time limits provided for the submission of complaints in s. 77 of the Acts.

8 The AO accepted the Respondent's arguments to this effect and the Complainant appealed this Decision.

9 The Court received substantial submissions on the substance of the issue but decided that before any such arguments could, or should, be heard, the preliminary issue of jurisdiction had to be determined and the parties were invited to make submissions on this point.

10 Summary of Complainant's arguments

11 The Pensions Act 1990, as amended by the Social Welfare (Miscellaneous Provisions) Act 2004, refers to complaints being submitted within 6 months or, at most, 12 months from the termination of the ‘relevant employment’, (s.81E). Relevant employment is defined as ‘Any employment (or any period treated as employment) to which the scheme applies’. The Complainant as an active member of the scheme for whom contributions continued to be paid is entitled to have the period during which he was paid under the ICS regarded as ‘period treated as employment’.

12 The letter issued to the Complainant on 29 October 1991 that purported to terminate his employment makes reference to Article 9.03 of a union/management agreement, which clause allows a beneficiary under the ICS to take up active employment again if deemed fit to do so, something that is not available to any other worker who terminates their employment or has their...