ADJUDICATION OFFICER DECISIONS

 Adjudication Reference: ADJ-00005230

Parties:

Complaints:

Date of Adjudication Hearing: 26th January 2017 and 27/03/2017

Procedure:

In accordance with Part VII of the Pensions Acts 1990 - 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

The Complainant joined the original pension scheme on the commencement of his employment in 1974 and has remained in this scheme until his early retirement in 1998. This original pension scheme does not provide for a survivor pension for the Complainant’s husband because the Complainant married him after he retired.

The Complainant did not make a submission, either oral or written, to either Hearings, on the substantive issue but confined his arguments to the issue of the time limits as contained in Section 81(E) of the Pensions Act, 1990, as amended by the Social Welfare (Miscellaneous) Provisions Act, 2004. The Complainant agreed to make a submission to the Adjudication Officer after the March Hearing and to copy to the other Party. The Complainant forwarded a submission to the Adjudication Officer on 2^nd May 2017. In this submission the Complainant states “….did not open the substantive case because if the WRC were to hear the case notwithstanding the Respondents preliminary objections and set aside the time limit it would risk the State seeking an Order of Prohibition against the WRC in the High Court as the Respondent’s has done previously”. The submission goes on to request the Adjudication Officer to issue a decision which in effect would be an opinion that the time limit in the Pensions Act is in breach of European law.

The Respondent replied to this submission by letter dated 12^th July 2017 and copied to the Complainant. In this the Respondent refers to the Supreme Court Decision on the WRC appeal against the decision of Charleton J – Minister for Justice, Equality and Law Reform v Workplace Relations Commission delivered on 15^th June 2017 by Justice Clarke (2017) IESC 43.

In that Judgement Justice Clarke held as follows: It follows that, as a matter of fundamental Irish constitutional law, the proper interpretation of the jurisdiction of the Tribunal, on the one hand, and the High Court, on the other, is that the Tribunal does not have jurisdiction to deal with cases involving the disapplication of national legislation but the High Court, having that jurisdiction also has an entitlement to implement, in the course of considering a case brought in which it is contended that there is a breach of Union employment rights which might require the disapplication of a measure of national legislation, a full power to provide for any remedy which would be available under the Employment Equality Acts”. ,Justice Clarke went on at paragraph 10.1 of his judgement as follows – “As already noted in the ruling delivered by the Court on the 1^st June last, the Court has determined to make a reference of certain issues of European law to the CJEU under the provisions of Art.267 of the TFEU. The purpose of this judgement is to set out the reasons why I supported that view of the Court. In substance I have set out the basis on which I consider that, as a matter of national law, a person or body exercising statutory power (not being a court established under the Constitution) does not have jurisdiction to commence a process where the only positive conclusion would involve setting aside or disapplying a measure of legislation……..On that basis I have concluded that the Tribunal would not, as a matter of national law, have jurisdiction to entertain the complaints of the notice parties in this case for the only lawful conclusion in favour of those notice parties would require the disapplication of the Regulations”.

Part VII of the Pensions Acts, 1990 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Part.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

CA-00007088-001

In Accordance with Section 79(6) of the Employment Equality Acts, 1998 – 2015 I declare this complaint fails for lack of prosecution as the Complainant did not make any submission to the Hearings on 26^th January 2017 or 27^th March 2017 or post the Hearings in relation to this complaint under this Act.

CA-00007088-002

In accordance with Part VII of the Pensions Act, 1990 – 2015 I declare I do not have jurisdiction to hear this complaint as the complaint does not comply with Section 81(E) of the Pensions Act, 1990 which provides as follows – “ (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.” Section 81(E) (6 )does allow for an extension of time for a period not exceeding 12 months due to reasonable cause. The Complainant retired in 1998 and this complaint was submitted to the WRC on 7^th September 2016, some 18 years later.

Dated:   30 August 2017

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