THE EQUALITY TRIBUNAL
PENSION ACTS 1990-2011
Decision DEC – P2015 – 003
Mr Michael Sheils
Boliden Tara Mines and the Tara Mines Pension Scheme
(represented by IBEC)
File References: PEN/2014/001
Date of Issue: 15th April 2015
The case concerns a claim by Mr Michael Sheils that the respondents discriminated against him on the ground of disability contrary to Section 66(1) and 66(2)(g), and in contravention of S. 70 of the Pension Acts 1990 to 2011, in relation to their occupational pension scheme.
The complainant referred two complaints under the Pension Acts 1990 to 2011 to the Director of the Equality Tribunal on 12 February 2014 and on 22 July 2014. A submission was received from the complainant on 22 May 2014. A submission was received from the respondent on 7 April 2015. On 28 January 2015, in accordance with his powers under S. 75 of the Employment Equality Acts which also govern delegation under the Pension Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under S. 81 of the Pension Acts. This includes the power to dismiss a case as misconceived, frivolous and vexatious, in bad faith or relating to a trivial matter pursuant to S. 81J(2) of the Acts, as amended by the Equality Act 2004. On this date my investigation commenced. In the course of studying the associated documents submitted by the parties, it became clear that the Tribunal does not have jurisdiction in this case, as the matter had previously been decided by the Supreme Court. As required by the Acts and as part of my investigation, I had proposed to hold a joint hearing of the case on 15 April 2015. The parties were in attendance, but I was compelled to tell them at the outset that I could not proceed to hear the matter, although I did give the complainant and his party the opportunity to make oral statements in response to the explanations I provided. I will address the reasons for the Tribunal’s lack of jurisdiction in the following sections.
2. Conclusions of the Equality Officer
It is clear from documentary evidence submitted by both parties that the very issue in dispute was decided in a 2010 Supreme Court case. This case is In the Matter of the Tara Mines Pension Plan, between Boliden Tara Mines Ltd and Frank Cosgrove, Tadg Farrell, Christopher Gorman, John Kelly, Peter Mullin, Alan Broxson, Irish Pensions Trust Ltd and (by Order) Michael Sheils [104/2007], which was heard before Hardiman, Macken and McKechnie JJs and on which Hardiman J delivered judgement on 21 December 2010.
From the legal submissions which were made by the complainant’s representatives before the Supreme Court, it is clear that discrimination on the ground of disability, pursuant to the provisions of Section 81 of the Pension Acts 1990 to 2011, was part of the case raised before that court. This is set out in great detail in paragraphs 56 to 64 of the relevant submission, which reads in fact exactly like a legal submission to this Tribunal on the relevant issue might do. However, in his written decision, Hardiman J. notes specifically that “the representative defendant [NB: this is Mr Sheils, who is the complainant in the case on hand] did not counterclaim that if the Deed fell to be amended it damaged the position of those whom he represented and it is indeed hard to see that case could have been made.” [Emphasis added].
The complainant stated in person before me on 15 April that in the opinion of his solicitors, and also to his recollection from what was said in the Supreme Court proceedings before Hardiman J., that his discrimination complaint was not compromised and that Hardiman J. had only decided on the matter of the rectification of the deed. However, I cannot put probative value on these statements based on what Hardiman J. clearly states in his decision, as quoted above. This Tribunal is under all circumstances bound by Hardiman J’s written decision.
It does indeed seem from the decision of Hardiman J. that large parts of the argument of the appellant, that is, the first named respondent in the present case, were uncontested between the parties. Whatever about these details, it is clear from Hardiman J.’s finding quoted above that the issue of discrimination pursuant to the Pension Acts, while raised in the defendant’s pleadings, was not pursued by his legal representatives in oral proceedings and therefore decided in his disfavour. This means that the matter is res judicata. Only an express statement by Hardiman J, in his written judgement, that the discrimination complaint was remitted back to this Tribunal, would permit me to investigate this matter. That is not the case.
3. The Law
A claim is misconceived when it is incorrectly based in law. In Keane v. Minister for Justice [1994 3IR 347], Lynch J found that the Minister had no statutory power to relieve Leitrim County Council of its duty to provide courthouse accommodation in Carrick-on-Shannon and that her direction to the council was therefore “wholly misconceived and invalid”. In my view, this complaint is similarly misconceived because the issue on which the complainant seeks a decision has already been decided in the Supreme Court and this decision is binding on all lower courts and tribunals. It cannot be re-litigated and the Tribunal therefore has no jurisdiction to investigate his complaint.
Based on all of the foregoing, I find, pursuant to S. 81E of the Pension Acts 1990 to 2011, that the complaint is misconceived within the meaning of S. 81J(2) of the Acts, and that the Tribunal does not have jurisdiction to investigate the matter.
15 April 2015