PAO161

This is an appeal by Mr Sheils (“the Complainant”) against the decision of the Equality Tribunal in his claim of discrimination on grounds of disability in relation to his pension entitlements. The claim was before the Equality Tribunal under the Pensions Act 1990, as amended. The Complainant, in fact, made two separate referrals to the Equality Tribunal: the first on 12 February 2014; the second on 22 July 2014. The Equality Officer to whom the complaints were assigned decided to investigate them by way of a preliminary issue under section 77A of the Employment Equality Act 1998 (as imported by section 81J(2) of the Pensions Act 1990) to ascertain whether or not he had jurisdiction in the case. The Equality Officer, in short, determined that the issues referred to the Equality Tribunal were effectivelyres judicataand he, therefore, declined to accept jurisdiction.

An appeal lies to this Court under section 77A but the Court is only empowered to affirm or quash the first instance decision. If the Court decides on the latter outcome the matter is remitted (post 1 October 2015) to the Director General of the Workplace Relations Commission for a substantive investigation.

There is a long and complicated history of litigation in the civil courts which forms the backdrop to the Complainant’s case in the within proceedings. It is necessary to outline the salient element of this history in general terms in order to give some context to the Equality Officer’s decision, to the matters referred to the Court in this appeal and to the Court’s determination of those matters.

Background Facts

The following outline of the substantive dispute between the parties can be gleaned from a reading of the judgments of the High Court and the Supreme Court in the civil litigation referred to above.

The Complainant commenced working with the Respondent in 1976 as a miner. The Respondent operated a pension scheme which was, at that time, co-ordinated with the State pension i.e. pensionable salary was calculated as actual salary less 1.5 times the rate of the State pension.

Having regard to the arduous nature of the employment, many miners are unable to continue working on health grounds up to the normal retirement age of 65 specified in the scheme. The Respondent also had in place a separate income continuance scheme which provided an income to those who were invalided out of employment on health grounds. The income continuance scheme also provided for payment of the full contributions to the pension scheme so that, for practical purposes, years spent in receipt of income continuance payments were treated as years of service for the purpose of the pension scheme. The Complainant is one of those workers who became unable to continue working and he appears to have been placed on income continuance in or about 1991.

SIPTU was dissatisfied with the integration of their members’ occupational pension with the State pension. In or about 1996, the mine was in financial and commercial difficulty and negotiations took place between the Frist Respondent and the union directed at improving productivity. Proposals emerged which were subsequently rejected by the union members. There were further negotiations under the auspices of the Labour Relations Commission. While the history of what then occurred is complex, for present purposes it is sufficient to say that agreement was eventually reached on a productivity agreement.

From the prospective of the workers, a major element in this agreement was a commitment to end co-ordination of the pension scheme. There was also agreement on the appointment of worker trustees of the scheme. While there is again some controversy as to the scope of the agreement to end coordination, the view appears to have been taken by certain parties to the agreement that, since the consideration for this major and, presumably, costly change was improved productivity, the benefits of the change should only accrue to those continuing in work and providing the productivity. The precise legal formula by which this principle was to be incorporated in an amended Trust Deed governing the pension scheme is at the heart of the historic litigation referred to earlier and this present dispute.

It was recognised that the Trust Deed of the scheme would have to be amended to give effect to the agreement reached. Irish Pensions Trust was the corporate trustee of the scheme. Discussions took place between the Trustee and the Respondent on the amendment of the scheme. As emerged in the subsequent litigation, it was the clear understanding of both the Trustee and the Respondent that the benefits of the new scheme would be confined to those employed by the Respondent at the time that the amendments took effect. The in-house lawyer of the Trustee was assigned responsibility to draft a suitable Deed of Amendment. The wording as drafted by the lawyer was to confine the benefits of the amended scheme to "active members" of the scheme. The lawyer averred in an Affidavit sworn for the purpose of the subsequent litigation that his instructions were to confine the new benefits to current employees of the Respondent and that he understood that the term “active members of the scheme” to be coterminous with “current employee”.

The amended Deed was subsequently executed in 1999. A dispute arose in 2002 when a member of the scheme who was on income continuance reached 65 and claimed his pension. He was told that his pension entitlements were to be calculated on the basis of the old co-ordinated scheme. This person asserted that he remained an active member of the scheme after the coming into effect of the amendment by virtue of his membership of the income continuance scheme. Both the Respondent and the Trustee took the view that as he had ceased to be an employee of the Respondent’s before the amendment he did not benefit from the change. The person concerned instructed solicitors in the matter and it appears that the existence of a problem with the wording of the amending Deed was identified.

The Litigation

The Respondent and the Trustee jointly applied to the High Court seeking an Order of Rectification of the 1999 Deed. In effect, the Trustee and the Respondent sought to amend the Deed so as to exclude members receiving benefits from the income continuance scheme from the uncoordinated pension scheme. This, they contended, was what was always intended by the parties to the company-union agreement.

The application to the High Court was opposed by a number of members of the pension scheme including the Complainant. The case proceeded in the High Court (Commercial Division) before Finlay Geoghegan J. She dismissed the application (reported asBoliden Tara Mines v Cosgrave and Ors,. Irish Pension Trust, and (By Order of the Court) Michael Sheils[2007] IEHC 60). The matter was then appealed to the Supreme Court. In a judgment delivered on 21 December 2010 by Hardiman J, Macken and McKechnie JJ concurring, the Supreme Court allowed the appeal and granted the order for rectification.

The Complainant submits that, in submissions made to the Supreme Court on his behalf, the possibility of the Deed, if rectified, contravening the Pensions Acts was canvased. However these submissions were neither recited nor addressed in the judgment of the Supreme Court.

The present dispute

It is the Complainant’s view that his lawyers had decided to seek clarification from the Supreme Court, at a hearing before it to deal with costs, whether the judgment of the Court would act as a bar to any subsequent proceedings grounded in equality law which might be brought by the Complainant. There is no official record of what transpired in respect of this matter at that hearing. However, the Complainant’s position is that at the costs hearing his Counsel requested the Court to include a reference in its final Order to the effect that the decision of the Court to grant an Order for Rectification would not prejudice proceedings under the Pensions Acts by the Complainant and others similarly affected. The Complainant further contends that senior counsel for the Respondent gave an undertaking in Court that the Respondent would not seek to argue in further proceedings that the decision of Supreme Court in any way decided issues relating to alleged unlawful discrimination. The Respondent to the within proceedings sought to challenge the Complainant’s position in this regard.

Case Management Conference

The Court invited the Parties the within appeal to attend a case management conference on 1 October 2015 in order to give directions to them in relation to how the Court proposed to address the jurisdictional issues raised by the Respondent on the appeal. The Complainant was requested by the Court to furnish it with a written statement from the solicitors he instructed in the Supreme Court proceedings (Eversheds) which statement was to address any knowledge on their part in relation to the alleged undertaking given by Senior Counsel in the course of proceedings before the Supreme Court. The Complainant furnished the required statement from Eversheds on or around 5 May 2016. The Court copied this to the Respondent. Enclosed with the statement from Eversheds was a copy of a letter dated 4 February 2011 from Paul Sreenan SC to Eversheds confirming the details of the final order made by the Supreme Court in the case ofBoliden Tara Mines v Cosgrave & Orson 2 February 2011. In that letter, Mr Sreenan SC advised his instructing solicitors as follows:

• “Counsel on behalf of Boliden Tara Mines (Maurice Collins SC) said that his clients would not be seeking to argue in any future application or proceedings that the Supreme Court had in any way decided any allegations under the Pensions Act, 1990 or any of the allegations relating to alleged inequality.”

The Court held a hearing on 23 September 2016 at which it noted the aforementioned developments and apprised the parties of the significance of the Mr Sreenan’s letter of 4 February 2011.

Determination

As it appears on the balance of probabilities to the Court that the undertaking contended for by the Complainant was given before the Supreme Court on 2 February 2011, the matter which is the subject of within proceedings is notres judicataand the Respondent is barred by promissory estoppel from so claiming. The Court accordingly determines that the decision of the Equality Officer at first instance is hereby quashed. It follows that the Complainant’s substantive complaint now falls to be investigated by an Adjudication Officer of the Workplace Relations Commission. The Court hopes- given the nature of the case and the protracted nature of the proceedings to date – that this investigation can be expedited and completed in early course. Therefore permitting the matter to be remitted to the Director General of the Workplace Relations Commission for a substantive investigation.

Signed on behalf of the Labour Court



Alan Haugh
CO'R______________________
4th October 2016Deputy Chairman



NOTE

Enquiries concerning this Recommendation should be addressed to Clodagh O'Reilly, Court Secretary.