Complainant

Respondent

Parties

Brendon  Colvert

An Garda Síochána

Representatives

N/A

Mark Finan BL instructed by Chief State Solicitor's Office

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

CA-00043809-001

29/04/2021

The Complainant asserted that he has been underpaid in respect of his pension entitlements since 1993 and is seeking full payment of his entitlements from here on in.

The Complainant joined the Respondent organisation on 25 May 1954 and retired on 4 July 1983, attaining 31 years and 165 days of reckonable pensionable service. He was denied a pension increase in 1993 because that increase was only permitted to Gardai who had retired since 1993. As such, he is now paid approximately €650 less per month than a sergeant colleague who did the same work as him but retired some years later. He asserted that this is grossly unfair treatment of a loyal servant of the State.

The Respondent stated that the WRC does not have the jurisdiction to adjudicate on contractual disputes, claims for breaches of constitutional rights or breaches of the European Convention of Human Rights.

The Respondent also stated that the responsibility for the regulation of pay and conditions of Gardai lies with the Minister for Justice and not with the Respondent. Accordingly, it was asserted that even if the Complainant had any complaint that was capable of determination by the WRC, then such a complaint is against the Minister for Justice and not the Respondent.

It was also asserted that the within complaint was not submitted to the WRC within the timeframes provided for in the Act.

It was also submitted that, notwithstanding all of the above, no discrimination on the grounds of age, either direct or indirect occurred.  Specifically, it was asserted that any difference in treatment of a garda who retired after the Complainant is the fixing of age or qualifying criteria for an entitlement to benefit which falls within the exception provided by s 71(1)(d) of the Pensions Acts 1990, as amended, which provides that such fixing of age is not discrimination based on age. It was also stated that the circumstances of the Complainant’s chosen comparator, namely his successor in the role, are completely different by virtue of the change to periodic contribution arrangements and lump sum as well as death gratuity entitlements which affected the comparator’s pension arrangements.

The Law

The time limits for the bringing of a claim pursuant to s. 81 ( e ) of the Act are 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 (6) of the Act allows for an extension of time for a period not exceeding 12 months due to reasonable cause.

Findings

The Complainant retired on 4 July 1983 and this complaint was submitted to the WRC on 7th September 2021, over 38 years later, outside of the time limits prescribed in the Act as set out above. I find that I therefore do not have jurisdiction to hear this complaint.

I find that I do not have jurisdiction to hear this complaint for the reasons set out above.