Labour Court Database __________________________________________________________________________________ File Number: AEP8410 Case Number: DEP873 Section / Act: S8(1)AD Parties: DEPT OF EDUCATION - and - EMPLOYMENT EQUALITY AGENCY |
Appeal by the Employment Equality Agency against Equality Officer's recommendation No. EP 19/1984, in the case of a claim, under the Anti-Discrimination (Pay) Act, 1974, for a survivors benefit, by Mr Joseph Candon under his deceased wife's pension scheme.
Recommendation:
7. The Department has asked that a number of procedural points be
dealt with before the main grounds of appeal as lodged by the
Agency.
8. The first of these relates to the time limit under which
appeals may be lodged. The Court is satisfied that the appeal was
lodged in time. The Equality Officer's recommendation was issued
on 30th August, 1984, and the appeal delivered to the Court's
premises on 11th October, 1984, although it was not date stamped
in the Court programming section until 12th October, 1984. The
Court finds therefore as a matter of fact that the appeal was
lodged in time.
9. The Department has further argued that because the appeal was
served on it outside the 42 day time limit and because there was
an obligation on the appellant to serve the appeal on the
Department within the time limit the appeal is statute barred.
The Court finds that there is no onus on either the Court or the
appellant to serve the notice on the respondent in an appeal
within the 42 days.
10. The Court has heard arguments from the Department that it is
not the employer for the purpose of the case and the Agency has
put forward legal arguments tha the Department is the employer and
that it is estopped from claiming otherwise. The Court has
considered these arguments and has come to the conclusion that the
Department is the employer for the purpose of the
Anti-Discrimination (Pay) Act, 1974, because it fulfils the major
function of an employer in that it pays the remuneration of
teachers in national schools including pensions and survivors
benefits and paid the remuneration of Mrs. Candon.
11. In her recommendation the Equality Officer found that a claim
for payment to Mr. Candon of a survivor's benefit under his
deceased wife's pension scheme does not come within the scope of
the Act. In reaching this conclusion the Equality Officer relied
upon a statement in a determination of the Court in the case of
University College, Dublin and the Irish Federation of University
Teachers. In DEP-17-79 the Court was merely saying that the
question of whether the payment was to be made directly or
indirectly to the widower was outside the scope of the Act. It
was not saying that the question of whether the payment was to be
made at all fell outside the Act. In this case there is no
question but that Mr. Candon is the rightful beneficiary and the
Court determines that the payment be made to him. The amount of
the payments should be the same as would be payable had Mrs.
Candon been a man. The Court therefore upholds the appeal on the
basis of groun no. 5 as submitted by the Agency.
12. As the Court is upholding the appeal on this ground it is
unnecessary to consider the other grounds of appeal.
13. The Court has considered the other objections raised by the
Department as part of its response and does not find in them any
reason to reject the appeal. The determination of the Court is
therefore that the Department of Education should pay to Mr.
Candon such lump sums and pension benefits as would have been due
to him had he been the widow of a male teacher who was in the same
circumstances as Mrs. Candon. The Court notes that Mr. Candon is
prepared to pay to the Department such contributions as would have
been due to it and the Court therefore makes no determination on
that question.
Division: CHAIRMAN Mr Collins Ms Ni Mhurchu
Text of Document__________________________________________________________________
AEP8410 THE LABOUR COURT DEP387
EP19/1984 ANTI-DISCRIMINATION (PAY) ACT, 1974
DETERMINATION NO. 3 OF 1987
PARTIES: DEPARTMENT OF EDUCATION
(Represented by Mr. Ercus Stewart S.C.)
and
EMPLOYMENT EQUALITY AGENCY
(Represented by Mrs. Mary Robinson S.C.)
Subject:
1. Appeal by the Employment Equality Agency against Equality
Officer's recommendation No. EP 19/1984, in the case of a claim,
under the Anti-Discrimination (Pay) Act, 1974, for a survivors
benefit, by Mr Joseph Candon under his deceased wife's pension
scheme.
Background:
2. Mrs Candon commenced employment as a primary teacher in St.
Raphael's Special School Celbridge, in September, 1966 and on
taking up her appointment she automatically became a member of the
pension scheme for national school teachers as a normal condition
of employment under the Teachers Superannuation Act, 1934. In
1969 a new pension scheme was introduced covering dependants of
male employees in the public service in the event of death. The
contribution rate was fixed at 1.50 of gross income. A special
provision was made for widows of pensionable civil servants who
were ineligible to participate in the scheme due to their
retirement or death prior to the specified date of 23rd July,
1968. The provision enabled such widows to qualify for half the
appropriate benefit on an ex-gratia basis. The new scheme was not
extended to dependants of female employees. The deceased
continued in her employment until February, 1980 when she was
retired by the Department of Education on grounds of ill health.
She died on 28th June, 1980. Towards the end of 1980 Mr Candon
contacted the Department of Education regarding his eligibility to
qualify for survivor's benefit as a dependant of a deceased female
employee in the same way as widows of pensionable civil servants
prior to 1968. He was informed by the Department that he was not
eligible to claim survivor's benefit.
3. On 1st June, 1981 the pension scheme was amended to extend the
Widows and Childrens Pension Scheme to survivors of female
officers who had been serving in an established capacity between
1st March, 1980 and 31st May, 1981 and who did not opt out of the
scheme or who became established on or after 1st June, 1981. Mrs
Candon, however, could not be included in this category as she had
been retired by the Department prior to 1st March, 1980. On 27th
September, 1982 Mr Candon wrote to the Department contesting his
eligibility for survivor's benefit as the spouse of a deceased
female employee and stressed the following points:-
(i) The deceased should have been eligible to participate
in the Spouses and Childrens Pension Scheme, the right
to this having been established in the case of Senator
Mary Robinson and the Department of the Public Service
which was determined by the Labour Court in 1979.
(ii) Administrative delays on the part of the Department in
the introduction of the amended scheme had prohibited
the deceased's participation in it as she had died
prior to June, 1981.
(iii) Following the Labour Court Determination in 1979,
which established the entitlement of female officers
to participate, the Department continued to operate a
pension scheme which was contrary to the provisions of
the 1974 Act.
The Department of Education refused his application by letter
dated 15th November, 1982.
4. Mr Candon sought the advice of the Employment Equality Agency
and the Agency, having considered the issues involved, felt that
it should exercise its discretionary powers under Section 7(2) of
the Anti-Discrimination (Pay) Act, 1974 and refer the case to an
equality officer for investigation. The equality officer, having
investigated the case, issued Recommendation No. 19/1984 the
conclusions and recommendatory paragraph of which are attached as
Appendix A to this Determination.
5. The Employment Equality Agency found the equality officer's
recommendation unacceptable and appealed it, under Section 8(1)(a)
of the Anti-Discrimination (Pay) Act, 1974, to the Labour Court.
The Agency's grounds for appeal were as follows:-
"1. The Equality Officer, having concluded at paragraph 16 of
her Recommendation that the Agency had properly referred a
matter to her for investigation under Section 7(2) of the
1974 Act, failed to fulfill her functions under Section 7
of dealing with the matter by way of investigation and
recommendation as if it were a reference under sub-section
(1) of a dispute by an employee.
2. The Equality Officer mis-directed herself in law in
concluding that the definition of employee for the purpose
of the Anti-Discrimination (Pay) Act, 1974 and the
Employment Equality Act, 1977 does not encompass personal
representatives of employees (para, 19(ii)).
3. The Equality Officer mis-directed herself in law in
concluding that she had "no function in investigating
under the Act any claim by the spouse of the deceased
(either as husband or as personal representative) against
the Department as the spouse is not and was not an
employee of the Department" (para. 20).
4. The Equality Officer mis-directed herself in law in that
having considered that the deceased had an entitlement to
pension benefits for her survivors on the same basis as
applied to male employees of the Department employed on
"like work" with her, (para, 21) she failed to conclude
that this entitlement to pension benefits for her
survivors formed part of the personal estate of the
employee which under Section 10 of the Succession Act,
1965 would devolve on and become vested in the employee's
personal representative.
5. The Equality Officer mis-directed herself in law on the
question of payment of the benefit in concluding at
paragraph 22 that "the actual payment of the benefit is
outside the scope of the Act as the payment is made to a
person other than the employee".
6. The Equality Officer mis-directed herself in law in
characterising the matter referred to her by the Agency as
"a claim for benefit to the spouse of the deceased" of a
survivor's benefit under his deceased wife's pension
scheme", and in concluding (para. 23) that such a claim
did not come within the scope of the Act.
7. The Equality Officer mis-directed herself in law in
concluding in effect that although the matter had been
properly referred to her by the Agency under Section 7(2),
(and as such should have been dealt with as if it were a
reference under Section 7(1) of a dispute by an employee),
that the matter was outside the scope of the Act".
6. The Court heard the appeal on 28th March, 1985. In separate
submissions to the Court the Agency and the Department (both of
which were legally represented) outlined their position in
relation to this appeal. These submissions are attached as
appendices B and C respectively, to this Determination. The Court
adjourned the hearing in order to seek legal opinion on a point
raised by the Departments' legal advisor that Mr Candon is not an
"employee" and that the Department of Education is not an
"employer" within the meaning of the Anti-Discrimination Act, 1974
and, on this basis, the Labour Court does not have jurisdiction to
deal with the appeal. On 13th September, 1985 the Court wrote to
the Chief State Solicitor's Office seeking legal opinion on this
matter. On 25th November, 1986 the Chief State Solicitor replied
and his reply is attached as Appendix D to this Determination. A
copy was forwarded to the Employment Equality Agency and on 17th
February, 1987 the Agency responded. A copy of the Agency's
response is attached as Appendix E to this Determination. On 29th
April, 1987 the Court resumed its hearing of the case. The
Department made a supplementary submission to the Court, attached
as Appendix F to this Determination. Both parties made oral
submissions at the hearing.
DETERMINATION:
7. The Department has asked that a number of procedural points be
dealt with before the main grounds of appeal as lodged by the
Agency.
8. The first of these relates to the time limit under which
appeals may be lodged. The Court is satisfied that the appeal was
lodged in time. The Equality Officer's recommendation was issued
on 30th August, 1984, and the appeal delivered to the Court's
premises on 11th October, 1984, although it was not date stamped
in the Court programming section until 12th October, 1984. The
Court finds therefore as a matter of fact that the appeal was
lodged in time.
9. The Department has further argued that because the appeal was
served on it outside the 42 day time limit and because there was
an obligation on the appellant to serve the appeal on the
Department within the time limit the appeal is statute barred.
The Court finds that there is no onus on either the Court or the
appellant to serve the notice on the respondent in an appeal
within the 42 days.
10. The Court has heard arguments from the Department that it is
not the employer for the purpose of the case and the Agency has
put forward legal arguments tha the Department is the employer and
that it is estopped from claiming otherwise. The Court has
considered these arguments and has come to the conclusion that the
Department is the employer for the purpose of the
Anti-Discrimination (Pay) Act, 1974, because it fulfils the major
function of an employer in that it pays the remuneration of
teachers in national schools including pensions and survivors
benefits and paid the remuneration of Mrs. Candon.
11. In her recommendation the Equality Officer found that a claim
for payment to Mr. Candon of a survivor's benefit under his
deceased wife's pension scheme does not come within the scope of
the Act. In reaching this conclusion the Equality Officer relied
upon a statement in a determination of the Court in the case of
University College, Dublin and the Irish Federation of University
Teachers. In DEP-17-79 the Court was merely saying that the
question of whether the payment was to be made directly or
indirectly to the widower was outside the scope of the Act. It
was not saying that the question of whether the payment was to be
made at all fell outside the Act. In this case there is no
question but that Mr. Candon is the rightful beneficiary and the
Court determines that the payment be made to him. The amount of
the payments should be the same as would be payable had Mrs.
Candon been a man. The Court therefore upholds the appeal on the
basis of groun no. 5 as submitted by the Agency.
12. As the Court is upholding the appeal on this ground it is
unnecessary to consider the other grounds of appeal.
13. The Court has considered the other objections raised by the
Department as part of its response and does not find in them any
reason to reject the appeal. The determination of the Court is
therefore that the Department of Education should pay to Mr.
Candon such lump sums and pension benefits as would have been due
to him had he been the widow of a male teacher who was in the same
circumstances as Mrs. Candon. The Court notes that Mr. Candon is
prepared to pay to the Department such contributions as would have
been due to it and the Court therefore makes no determination on
that question.
~
Signed on behalf of the Labour Court
8th May, 1987 John M. Horgan
T.O'M./P.W. Chairman
APPENDIX A
Equality Officer's conclusions and Recommendation
"Conclusions
15. Section 7(2) of the Act, as amended, provides that:-
"Where it appears to the Agency that an employer has failed to
comply with an equal pay clause but that either no dispute
had arisen in relation thereto or it is not reasonable to
expect the employee concerned to refer a dispute in relation
to such a clause to an Equality Officer, the matter may be
referred to an Equality Officer by the Agency ......"
During the early stages of her investigation of this case the
Equality Officer considered it important to establish whether or
not the case was being referred by the Agency on behalf of the
deceased, or on behalf of her personal representative. However,
having examined the section in more detail it appears to the
Equality Officer that the Agency's function under the section
might be more properly interpreted as one of referring cases on
its own behalf in the public interest of furthering the full
implementation of the Act. In the case here concerned "the
matter" concerned, in the context of section 7(2), is obviously
the alleged failure of the Department "to comply with an equal pay
clause", in relation to the deceased's contract of employment and
that is the only aspect of the case which appears to the Equality
Officer to come within the scope of the section.
16. Section 7(2) of the Act provides that where the Agency
considers that an employer has not complied with an equal pay
clause it may refer the matter for investigation in circumstances
where either (i) no dispute has arisen or (ii) where it is not
reasonable to expect the employee concerned to refer the matter.
It is sufficient that one of these conditions be satisfied. The
Department argues that the claim here concerned is inadmissible on
the contention that none of the criteria necessary for a referral
by the Agency under section 7(2) has been met. More specifically
it states that (i) a claim to admit female teachers to the
Teachers' Widows' and Childrens' scheme was made in 1979 and (ii)
Mrs Candon could reasonably have been expected to refer the matter
to an equality officer at any time between 1st July, 1984 and the
time of her retirement. Having considered that argument in the
context of Section 7(2) the Equality Officer is of the opinion
that the phrase "Where it appears to the Agency that" at the
beginning of the section applies to the sentence "it is not
reasonable to expect the employee to refer a dispute .......... to
an equality officer". Accordingly, she considers that the
function of deciding whether or not it is reasonable to expect the
employee concerned to refer the dispute for investigation rests
solely with the Agency; in other words a matter is properly
referred for investigation by the Agency under section 7(2)
provided that the Agency is satisfied that it is not reasonable to
expect the employee to make the referral.
17. The Department also argues that as the referral to the
Equality Officer did not take place within three years of the date
of the deceased's retirement the claim here concerned must fail.
The only section of the Act in which a reference is made to "three
years" is section 8(5) which states that:-
"In any proceedings brought by a person to recover
arrears of remuneration to which he is entitled
under this Act the person shall not be entitled to
be awarded any payment by way of such arrears in
respect of a time earlier than three years before
the date on which the relevant dispute was referred
under section 7 to an equal pay officer".
The Equality Officer considers that insofar as the claim here
concerned is not restricted to arrears of remuneration section
8(5) would not prohibit its consideration by an equality officer.
18. The Equality Officer has considered at length the detailed
submissions of the Agency and it seems clear to her that the case
here concerned is similar in its basic points as a case involving
University College Galway and the Agency which was the subject of
Equality Officer's recommendation No. E.P. 18/1984. Accordingly,
her conclusions on the two cases are very similar.
19. Having carefully considered the Agency's arguments in
relation to the definition of "employee" the Equality Officer is
of the opinion that:-
(i) By virtue of section 56(2) of the Employment Equality Act,
1977 the definition of employee in that Act also applies to
the Anti-Discrimination (Pay) Act, 1974. That definition
encompasses former employees. (Section 56(2) states that
"The Act of 1974 and this Act shall be construed together
as one Act").
(ii) The definition of employee does not encompass "personal
representatives". The Equality Officer is satisfied that
had it been intended that the definition should cover
personal representatives this would have been stated
explicitly in the definition as it was in the case of the
Unfair Dismissals Act, 1977.
20. In view of her conclusions in the previous paragraphs the
Equality Officer considers that (i) the alleged failure by the
Department to comply with an equal pay clause in the deceased's
contract of employment comes within the scope of her investigation
function having regard to section 7(2) of the Act and (ii) she had
no function in investigating under the Act any claim by the spouse
of the deceased (either as husband or as personal representative)
against the Department as the spouse is not and was not an
employee of the Department.
21. With regard to the alleged failure by the Department to
comply with the equal pay clause concerned the Agency refers to a
number of cases where the Labour Court decided that female
employees were entitled under the Act to survivors' pension
benefits. Having regard to those decisions and to section 2 and 4
of the Act the Equality Officer considers that the deceased had an
entitlement to pension benefits for her survivors on the same
basis as applied to male employee of the department employed on
"like work" with her. (As the scheme was contributory it is not
certain, of course, that the deceased would have availed of the
option to be included in the scheme).
22. On the question of payment of the benefit, in addition to her
conclusion at paragraph 19(ii), the Equality Officer considers it
relevant to refer to extracts from the decision of the Court in
the case of University Dublin and the Irish Federation of
University Teachers (DEP 17/1979). Those extracts are as
follows:-
"DETERMINATION:
In this appeal the College has maintained that a payment to an
employee's dependants under its pension scheme is not remuneration
within the provisions of the Anti-Discrimination (Pay) Act, 1974.
The Court agrees with that view. That, however, is not the point
at issue.
The question for the Court under the Act is whether the employee
himself or herself is receiving equal treatment in relation to
terms and conditions of employment. If an employer given an
employee an assurance that in the event of his or her death the
surviving spouse and children will be given certain benefits then
that assurance is of value to the employee. While the value of
the benefit may not be exactly measurable in financial terms and
will vary from one individual to another depending on family
circumstances and the subjective evaluation which and employee may
put on the welfare of his or her dependants it nevertheless has a
value. It could for example be valued at the cost of buying an
insurance policy giving the same benefits. That, however, would
not necessarily be the value for the purpose of the
Anti-Discrimintion (Pay) Act, 1974.
The method of payment of gratuities either directly to widows or
indirectly to a legal representative in the case of widowers is
outside the scope of the Act and therefore not appropriate for
determination by the Court".
It is clear to the Equality Officer that the Court's decision that
an employee has an entitlement under the Act to survivor's benefit
was based on the fact that the benefits was of a value to the
employee herself; it is also clear that the actual payment of the
benefit is outside the scope of the Act as the payment is made to
a person other than the employee.
RECOMMENDATION
23. In view of her conclusions the Equality Officer finds that a
claim for payment to the spouse of the deceased of a survivor's
benefit under his deceased wife's pension scheme does not come
within the scope of the Act".
(Both the deceased and her spouse were referred to by name in the
equality officer's conclusions and recommendation Ref. E.P.
19/1984).