ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00005231

Parties:

Complaints:

Date of Adjudication Hearing: 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 when he commenced employment with the Respondent in 1974. This original pension scheme does not provide for a survivor pension for the Complainant’s husband because the Complainant married him after he retired in 1995. The Complainant married in 2015.

A complaint against a Government Department, Ireland and the Attorney General, were referred to the Director of the Equality Tribunal on 16^th May 2013 and a Decision DEC-P2015-002 was issued on 13^th April 2015. This Decision of the Tribunal was appealed to the Labour Court but by letter dated 23^rd October 2015 this appeal was withdrawn by the Complainant.

A complaint was lodged with the Workplace Relations Commission on 7^th September 2016 this time citing the Respondent as The Government, Trustees of the named Pension Scheme and a Government Department.

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 2017 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 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.

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. This complaint was lodged with the WRC on 7^th September 2016. The Complainant retired in 1995 – some 21 years after his retirement.    

A further issue of res judicata was raised by the Respondent at the Hearing. However as I have found I do not have jurisdiction to hear the complaint as set out above I do not intend to address this issue.

Dated:   30 August 2017

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