SECTION 24, EMPLOYMENT EQUALITY ACT, 1977
DUBLIN CITY COUNCIL
(REPRESENTED BY BCM HANBY WALLACE)
- AND -
(REPRESENTED BY THE EQUALITY AUTHORITY)
Chairman: Ms Jenkinson
Employer Member: Mr Keogh
Worker Member: Mr O'Neill
1. Complaint that determination has not been implemented.
2. In July, 2002, the Court issued Determination No. EDA022 which awarded the claimant compensation of €20,000 pursuant to Section 23 of the Employment Equality Act, 1977, plus €5,000 pursuant to Section 82 of the Employment Equality Act, 1988, as a result of distress suffered. When the claimant received the award on the 3rd of October, 2002, she discovered that €8,400 tax and €484.20 had been deducted from the €20,000 award, and €2,100 tax and €144.76 had been deducted from the €5,000 award. In effect, she received €13,871.04 out of €25,000. The issue of the non payment of the full €5,000 under the 1998 Act has been referred to the Circuit Court pursuant to Section 91 of that Act.
On the 15th October, 2002, the Equality Authority, on behalf of the claimant, made a complaint pursuant to Section 24 of the 1977, Act, that the respondent had not fully and properly implemented the Labour Court Determination. The Respondent's case is that it had no choice but to comply with the Revenue Commissioner's instructions to deduct the appropriate tax and PRSI. A Labour Court hearing took place on the 25th of March, 2003.
3. 1. The Court's award of compensation is expressly stated to be by way of compensation for distress suffered as a result of discrimination. It is not for past or present service or for loss of earnings. As such, it should not have been subject to tax or PRSI.
2. Awards of compensation under the 1977, Act, must provide "real and effective compensation" if they are to comply under EU Law. This has not happened in the current case.
RESPONDENT'S ARGUMENTS :
4. 1. It is clear that the Court made no statement or requirement that tax or PRSI should not be deducted. The Court was, in fact, "on notice" regarding the taxation treatment issue and the likely approach of Revenue.
2. The Respondent had a legal responsibility with regard to the collection and payment of tax. This is made clear under the Income Tax Act, 1967 (as amended).
The Court has considered the submissions of both parties to this Section 24 hearing under the Employment Equality Act, 1997. In EDA022, in finding that the appellant had been victimised, the Court determined that she should be awarded compensation of €20,000 pursuant to Section 23 of the Employment Equality Act, 1997, as a result of the distress suffered by her. The Equality Authority, acting on behalf of the appellant, states that this determination has not been fully and properly implemented by the respondents. It is held by the Authority that tax and PRSI were incorrectly deducted from the €20,000 awarded.
The Court notes from the information supplied to the Court that €25,000 was paid to the appellant on 4th October 2002 (€20,000 in accordance with the Court's determination under Section 23 of the 1977, Act, and €5,000 under the 1998, Act). Operating on instructions from the Revenue Commissioners, the City Council deducted PAYE and PRSI from the amount paid in accordance with Section 112 of the Taxes Consolidation Act, 1997.
The Court is being asked to determine that the sum awarded was incorrectly classified as "an emolument " chargeable to income tax under Section 112 of the Taxes Consolidation Act, 1997. The Court is of the view that this question is not amenable to review under Section 24 of the Employment Equality Act, 1997.
This Court has no jurisdiction under the Taxes Consolidation Act, 1997, and is not competent to deal with such matters. The Court is of the view that a tax determination of the compensation award made is a matter which should properly be put before the Revenue Appeals Commissioners.
In the circumstances, the Court finds that the determination of the Labour Court under Section 23 of the Employment Equality Act, 1997, as specified in EDA022 has been fully implemented by the employer.
Signed on behalf of the Labour Court
15th April, 2003______________________
Enquiries concerning this Order should be addressed to Ciaran O'Neill, Court Secretary.