DEC-E2015-123

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision DEC – E2015 – 123

PARTIES

Mr James Kerins and Ms Helen McGuinness

(represented by David Boughton, B.L., instructed by Blake Horrigan Solicitors)

-v-

Office of the Revenue Commissioners

(represented by Anthony Kerr, B.L., instructed the respondents in-house solicitor)

File References: EE/2012/633 EE/2012/664

Date of Issue: 18th November 2015

Table of Contents

1. Claim.. 3

2. Summary of the Complainants’ Written Submissions. 3

3. Summary of the Respondent’s Written Submissions. 4

4. Conclusions of the Equality Officer 5

Time Limits. 5

Correct Respondent 6

5. Decision. 9

Keywords: S.77(5) – time limits – reasonable grounds which explain delay – extension granted – S. 86 – collective agreement – scope of provision -

1. Claim

1.1. The case concerns a claim by Mr James Kerins and Ms Helen McGuinness that the Office of the Revenue Commissioners discriminated against Mr Kerins on the ground of age contrary to Section 6(2)(f), and against Ms McGuinness on the ground of gender contrary to Section 692)(a) of the Employment Equality Acts 1998 to 2011, in terms of not paying them compensation for a change of work practices following an agreement concluded with their union, and which other colleagues did receive.

1.2. Mr Kerins referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 19 December 2012, and Ms McGuinness did so on 31 December 2012. A submission was received from Mr Kerins on 17 October 2013 and from Ms McGuinness on 1 May 2014. A submission was received from the respondent in respect of Mr Kerins on 29 November 2013 and in respect of Ms McGuinness on 17 June 2014. On 28 January 2015, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the cases on 13 March 2015. Additional evidence was requested from the respondent at the hearing and received on 31 March 2015. The last piece of correspondence relating to the complaint was received on 24 April 2015.

2. Summary of the Complainants’ Written Submissions

2.1. The complainants submit that they each worked, in the grade of Executive Officer, in the cargo terminal in Dublin airport. In this position, they both worked overtime according to an overtime roster designed by management, as importers and exporters required the presence of customs officers from 6am to 8am, and from 6pm to 10pm on Monday to Friday, and 7am to 12 noon on Saturdays. According to Ms McGuinness, the respondent ceased to provide the Monday to Friday out-of-hours service in 2007 and the Saturday service in 2010. In August 2010, Ms McGuinness left the position on promotion to the grade of Higher Executive Officer. Mr Kerins retired in 2010.

2.2. A claim was lodged by the two public service unions, the CPSU and the PSEU (of which the complainants were members) on behalf of the five workers affected by loss of overtime and therefore loss of earnings, when the out-of-hours service in Dublin Airport ceased. The complainants did not benefit of the settlement eventually achieved by the union and complain that this fact constitutes discrimination on the grounds of age and gender, respectively.

3. Summary of the Respondent’s Written Submissions

3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that neither age nor gender had any bearing on how the loss of earnings claims were settled. Specifically, it states that after it had decided to discontinue the out-of-hours service in Dublin airport in 2008, traders accepted the change without complaint. Initially, the complainants’ union, the PSEU, also signalled that it would not pursue a loss of earnings claim, as the overtime reduction was only four hours per week.

3.2. However, in 2010, such a claim was submitted by the union on behalf of the four staff who were its members. The respondent points out that under the provisions of the Scheme for Conciliation and Arbitration in the Civil Service, all negotiations regarding conditions of employment are done through the unions and are not conducted with individual staff members, and that the PSEU was the recognised union to negotiate on the complainants’ behalf.

3.3. After the union’s initial claim was rejected by the respondent, the matter was referred to arbitration. In advance of the adjudication hearing, the PSEU wrote to the respondent with a revised proposal in respect of the three staff members who were still working in Dublin Airport Cargo Terminal. Mr Kerins had retired by then, and Ms McGuinness had been promoted. The union suggested a settlement in respect of two male staff who, in their view, were most severely affected by loss of earnings, and indicated that if a settlement could be achieved, it would be a full and final settlement of all claims, including the complainants’. The respondent settled the claims on these terms.

3.4. It is the respondent’s position that any complaints by the complainants of having been left out of the settlement ought to be addressed by them to their trade union. In particular, the respondent denies that it ever gave a commitment to compensating any staff member for loss of earnings prior to the settlement agreed with the union.

4. Conclusions of the Equality Officer

Time Limits

4.1. At the hearing of the complaint, the respondent raised the issue that Mr Kerins had not brought his complaint within the six month time limit set out in S. 77(5) of the Acts. In light of the uncontroverted evidence given at the hearing by both complainants, that they experienced major difficulty to even learn of their position (that is, that their union had excluded their claims from the settlement negotations), I granted Mr Kerins and his representatives the opportunity to make an application for extension of time post-hearing. In his submission, counsel for the complainant outlines these problems in detail. In Ms McGuinness’s case, they are documented in her submission. Ms McGuinness’s efforts to gain clarity about her position continued even after the complaint with the Tribunal was filed.

4.2. The respondents responding submission, which, curiously, only refers to Ms McGuinness and not Mr Kerins (in respect of whom no initial application for time limits was made by the respondent), the respondent takes the view that as an experienced public servant, Ms Kerins would have had no reason to delay bringing her complaint.

4.3. After reviewing the paperwork on both files, it seems appropriate to make a decision regarding time limits for both complainants, for the avoidance of doubt.

4.4. With regard to the argument the respondent raised for Ms McGuinness, I cannot accept this. The total evidence of the complainants shows very clearly that they experienced a lot of stonewalling from the relevant parties when they attempted to establish their position with regard to their claims. In light of the fact that moot or frivolous litigation should be discouraged, they were correct in attempting to establish these facts first before bringing a complaint to the Tribunal. I am satisfied these circumstances are the reason for the delay, and also that they explain it and there was no lassitude on the part of the complainants. I am therefore granting the extension of time pursuant to S. 77(5) (b) of the Acts. To do otherwise would mean denying the complainants access to justice unconscionably.

Correct Respondent

4.5. The next issue for consideration and decision in this case is whether the respondent was correctly identified by the complainants. It is the respondent’s position that the complainants were dropped by their union from the settlement negotiations, and that any claim they might therefore have would be against their union. The respondent cites D.S. O’Cearbhaill and others v. Bord Telecom Eireann, SC 1993, Nos. 126-152, 20 December 1993, in support of their position.

4.6. That case concerned a restructuring agreement between the respondent and the appellant’s trade union regarding a grade abolition. The appellants had been on a panel for promotion for the subsequently abolished grade, and the restructuring agreement eliminated their prospects for promotion. The legislation which established Bord Telecom Eireann, the Postal and Telecommunications Act 1983, provided in S. 45 for the legality of diminution of pay and conditions of service where these were arrived at by way of negotiated collective agreement negotiated with a recognised trade union or staff association. Blayney J, with Finley CJ and Egan J concurring, held that the restructuring agreement in question was a collective agreement within the meaning of S. 45 of the Postal and Telecommunications Act 1983 and that the appellants had no valid complaint against Bord Telecom Eireann.

4.7. However, it is clear from the text of the judgement, and from the extensive quotes of the preceding High Court decision, that this restructuring agreement was an extensive and detailed one. It established a number of new engineering grades and gave detailed work descriptions for them. I am of the opinion that the case on hand, which deals with claims for abolition of overtime for five named workers, two of whom were the complainants, is quite different in nature. While the definition of “collective agreement” in S. 2 of the Acts defines it as “an agreement between an employer and a body or bodies representative of the employees to which the agreement relates”, which theoretically pertains also to such agreements when they cover a very small group of workers, the whole notion of both collective bargaining and collective agreements would fall into absurdity if trade union officials were free to exclude named members from any potential benefits at their whim. Furthermore, the actual provisions of S. 86 of the Acts make it clear that the both the situation and the remedy envisioned by the Oireachtas pertain to structural inequalities, that is, collective agreement provisions which disadvantage an entire protected group of workers. Nothing in either S. 86, nor in the provisions of S. 9 of the Acts which it explicitly references, refers to the exclusion of named individuals from claims settlements. For the sake of completeness, I should also note here that neither counsel sought to argue that S. 9 is engaged in these complaints.

4.8. A settlement of individual claims, however, is what happened in the instant case, as confirmed by the written and oral evidence adduced at the hearing of the complaint. In many ways, the situation of the complainants is not that far from those who suffer detriment as a result of poor legal representation when a legal action is settled “on the steps of the court”, as the popular phrase goes. The complainants’ position in this case is very awkward however, because the Scheme for Conciliation and Arbitration for the Civil Service (which was opened in evidence) bars civil servants from lodging claims like the ones at the centre of this dispute, except through their union. In other words, they would not have been permitted to bring a direct claim against their employer. In other words, the complainants had no choice but to turn to the union they were members of. That is fundamentally different from a free choice of solicitor. The Employment Equality Acts, on the other hand, only permit actions against employers as respondents, or in the case of genuine collective agreements, against the union(s) and employer(s) who negotiated it. Even in that case, the provisions of S. 86 of the Acts only stipulate that discriminatory provisions in collective agreements, if found to be so, shall be null and void. It does not comprehend the situation of the complainants of being dropped from a settlement negotiation without their knowledge and consent, whether that happened for discriminatory reasons or not. This essentially leaves the complainants with no recourse against their union under the Acts.

4.9. Counsel for the complainants argued that I should, under the circumstances, find that the respondent was under an obligation to ensure that the settlement would not be discriminatory against the excluded staff members.

4.10. In the months which have passed since correspondence with the parties came to an end, I have deliberated on this suggestion extensively. The lacuna in the provisions of the Acts, which the complainants’ case has brought to light, is deeply unsatisfactory in terms of the overall aim of the Oireachtas, evident in the length and complexity of the provisions of the Acts, to ensure a comprehensive protection from unlawful discrimination in all areas of employment. This is so especially in light of the fact that the complainants, by virtue of the Scheme for Conciliation and Arbitration for the Civil Service, which is part of every civil servants conditions of employment, are prevented from bringing complaints like the ones which gave rise to the within complaints directly against their employer.

4.11. That said, I am strongly of the opinion that there is no provision in the Acts which would allow me to construe such an obligation with regard to the extra-judicial settlement of employment-related complaints. In fact, I believe that to attempt to do so would be wholly ultra vires in terms of my powers under the Acts, my sympathy for the complainants’ situation notwithstanding.

4.12. Accordingly, I am compelled to find that the complainants cannot succeed because their complaints have been addressed to the wrong respondent and are therefore misconceived in law.

4.13. A claim is misconceived when it is incorrectly based in law. In Keane v. Minister for Justice [1994 3IR 347], Lynch J found that the Minister had no statutory power to relieve Leitrim County Council of its duty to provide courthouse accommodation in Carrick-on-Shannon and that her direction to the council was therefore “wholly misconceived and invalid”. In my view, this complaint is similarly misconceived because the respondent, for the reasons set out in the preceding paragraphs, was wrongly identified in the within claims. The Tribunal therefore has no jurisdiction to investigate the complaints.

5. Decision

5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the within complaints are misconceived within the meaning of S. 77A of the Acts and the Tribunal has no jurisdiction to investigate the complaints.

______________________

Stephen Bonnlander

Equality Officer/Adjudication Officer

18 November 2015