Case Number: ADJ-00000031. Workplace Relations Commission

• Docket Number: ADJ-00000031
• Hearing Date: 28 April 2021
• Date: 04 November 2021
• Court: Workplace Relations Commission
• Respondent: The Office of the Revenue Commissioners

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00000031

Parties:

	Complainant	Respondent
Parties	Barbara Geraghty	The Office of the Revenue Commissioners

Representatives Peter Leonard BL instructed by John Greene of P.C Moore & Co, Solicitors Cliona Kimber SC, Claire Bruton BL, instructed by the Chief State Solicitor

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00000033-001	02/10/2015

Date of Adjudication Hearing: 28/04/2021

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

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

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

Supreme Court -Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th April 2021

The Parties were apprised of the above Supreme Court judgement. On the issue of taking evidence under Oath it was agreed that, as there were no major or material conflicts of actual evidence as set out in the submissions, the Hearing could proceed without the taking of an Oath.

The question of anonymity was raised by the Adjudicator. The Respondent had a slight preference for an anonymous decision but as no strong views were expressed and following the Supreme Court views an anonymous decision has not been sufficiently argued – accordingly the Parties are named.

Due to the COVID 19 restrictions a degree of delay was occasioned in the preparation of the Adjudication decision.

Background:

The issues in contention concern the compulsory retirement of a former Civil Servant at age 65 in 2015. The Complainant contested that the Retirement Age is discriminatory on age grounds. She sought retention until age 70 years which she alleged was the case for many of her immediate colleagues. She alleged Discrimination on the Age ground, Family Status ground, and Other grounds. During the Hearing this was amended to the Age ground only.

1: Opening Jurisdictional arguments.

As a preliminary to the Hearing a number of procedural and jurisdictional issues were discussed and argued.

1:1 Background:

The questions raised were

• (1) The Respondent named, the Revenue Commissioners, was not the correct Respondent as it was an independent State entity, albeit part of the Civil Service, and was simply carrying out the Legal requirements of the Oireachtas as set out in the Civil Service Regulation Act,1956. The Commissioners could not act independently of the 1956 Act and having them as the sole Respondent was fruitless.

The precedent case of Horgan and Keegan v Minister for Education and Skills, The Department of Finance, The Department of Public Expenditure and Reform, Ireland and the Attorney General.C154/18, [2019] IRLR 597 was cited as a recent example. Here the Complainants, employed as Teachers, took their actions against a wider range of Respondents and ultimately the Attorney General and Ireland.

• (2) The Complainant, in this case, was subject to the regulations of Section 8 of the 1956 Act, albeit in a case of Discrimination and Employment Equality. European law was central to her case.

However, in the Supreme Court case Minister for Justice, Equality and Law Reform v the Workplace Relations Commission[2017] IESC 43 the Supreme Court ruled that the Workplace Relations Commission does not have jurisdiction to set aside, disapply or amend measures of legislation.

The case was the subject of a referral to the CJEU and the outcome was Boyle v Minister for Justice and Equality and Commissioner of an Garda Siochana and Workplace Relations Commission C-378/17.

It was argued that in this case EU law was recognised as superior to the Irish ruling and that the WRC did have the necessary powers.

1:2 Respondent Arguments

1:2:1 Correct Respondent

The named Respondent – the Revenue Commissioners, are a separate Legal entity under the auspices of the State. The Commissioners are obliged to implement all State employment legislation – in this case the Civil Service Regulation Act 1956. The Complainant effectively seeks to disapply Section 8 of the Act.

In first instance the named and only Respondent- the Revenue Commissioners are not the correct Respondents or if so should have been joined by the Department of Finance, The Department of Public Expenditure and Reform and the Attorney General.

This argument was advanced and supported by the case of Horgan and Keegan v Minister for Education and Skills, The Department of Finance, the Department of Public Expenditure and Reform and the Attorney General/Ireland.C-154/18, [2019] IRLR 597.

1:2:2 Jurisdiction of Workplace Relations Commission.

The Revenue Commissioners and or all the Respondents do not have the power to disapply or seek to amend an Act of the Oireachtas. This is the only possible outcome of a finding in favour of the Complainant by the Workplace Relations Commission.

However, in a major Supreme Court decision in Boyle, Cotter and Fitzpatrick v the Minister for Justice, Equality and Law Reform and the Commissioner of a Garda Siochana and the Workplace Relations Commission [2017] IESC 43 Mr. Justice Clarkeruled that only a duly constituted Court, as envisaged by Section 34 of the Irish Constitution has the jurisdiction to disapply legislation passed by the Houses of the Oireachtas. The WRC is not such a Court and as such can have no jurisdiction in a case such as this. Accordingly, the case cannot proceed at the WRC.

The CJEU reference from this case was acknowledged - Boyle v Minister for Justice and Equality and Commissioner of an Garda Siochana and Workplace Relations Commission C-378/17 (as a convenience called “The Boyle case”). It was argued that the judgement from this case his case was not as simplistic as purported and was much more nuanced than a simple authorisation to the WRC to / disapply or over turn domestic Irish legislation. A chain of CJEU cases leading from Palacios de La Villa C-411/05 -2007 was...