ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00009800
Parties:
| Complainant | Respondent |
Anonymised Parties | Mr. A (2) | A Government Department |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00011856-001 | 13/06/2017 |
Date of Adjudication Hearing: 27/09/2017
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 13th June 2017, the complainant referred a complaint of unfair dismissal to the Workplace Relations Commission pursuant to the Unfair Dismissals. This complaint is closely associated with complaints made by the same complainant against the same Government Department and a public body under the auspices of the Department. The other complaints are subject to reports bearing reference ADJ 6360 and ADJ 6381.
The three complaints were heard together on the 27th September 2017 at a single adjudication hearing. The complainant attended the adjudication. The respondent was represented by Cathy Smith, BL, instructed by the Chief State Solicitor’s Office. Two witnesses attended to give evidence: the HR Manager and the new HR Manager.
The evidence of the complainant and the respondent witnesses as well as the witnesses for the public body are set out in detail in ADJ 6360 and ADJ 6381. The net issue to be considered in this report is the ending of the complainant’s employment with the respondent Department.
In accordance with section 8 of the Unfair Dismissals Acts, 1977 - 2015 following the referral of the complaint to me by the Director General of the Workplace Relations Commission, 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.
Background:
The complainant is a civil servant and challenges the fairness of his dismissal on his 65th birthday. The respondent denies the claim. |
Summary of Complainant’s Case:
The complainant commenced employment as a civil servant in January 1999 and his employment ended on the 8th January 2017. He challenges the fairness of the dismissal as he made a protected disclosure on the 1st October 2015. This related to the work undertaken by the inspectorate service to which he was assigned. The complainant asserts that his dismissal was on grounds of the protected disclosure. He raises issues of penalisation, which include the refusal of the respondent to accede to his application for retention pursuant to section 8(4) of the Civil Service Regulation Act. |
Summary of Respondent’s Case:
The respondent submits that the complainant retired on reaching his 65th birthday on the 8th January 2017. It relies on section 8 of the Civil Service Regulation Act, 1956 to submit that this is the statutory retirement age for civil servants. It submitted that while section 8(4) allows for the retention of civil servants, even where they are so retained, they retire on reaching age 65.
The respondent relied on the decision of Clarke J. in Minister for Justice, Equality and Law Reform v Boyle [2017] IESC 43, which held “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, whether primary or secondary.”
The respondent submits that the adjudication lacks jurisdiction to consider this complaint as the only positive conclusion would be the setting aside or disapplication of section 8. Notwithstanding this submission, the respondent submits pursuant to section 2(1)(b) of the Unfair Dismissals Act, the Act does not apply to an employee dismissed on reaching normal retiring age. |
Findings and Conclusions:
The complainant commenced employment as a civil servant on the 4th January 1999 and turned 65 on the 8th January 2017. His employment came to an end on this day by way of retirement. Section 8 of the Civil Service Regulation Act, 1956 (as amended) provides: 8.—(1) In this section, “the retiring age” means—(a) in relation to a civil servant who is an officer to whom the Act of 1919 applies, sixty years, (b) in relation to any other civil servant, sixty-five years. (2) (a) The appropriate authority may, notwithstanding section 5, require any civil servant who is an officer to whom the Act of 1919 applies, and who has attained the age of fifty-five years or any other civil servant who has attained the age of sixty years to retire, and such civil servant shall retire accordingly. (b) Paragraph (a) of this subsection does not apply to a transferred officer who is an established civil servant. (3) Every civil servant shall retire on attaining the retiring age. (4) Notwithstanding anything in the preceding subsections of this section the appropriate authority may, with (provided the appropriate authority is not the Government or the Minister) the consent of the Minister (who may from time to time prescribe such conditions as he thinks fit governing the employment under this subsection of civil servants beyond the normal retiring age)— (a) direct that the retiring age of an established civil servant may be raised by a period not exceeding three calendar months, (b) direct that an established civil servant who reaches the retiring age may be retained in the Civil Service until he attains an age not exceeding, in case he is an officer to whom the Act of 1919 applies, sixty-five years or, in any other case, seventy years, and in that case any service rendered by him after the retiring age or, if his retiring age is raised under paragraph (a) of this subsection, his retiring age as so raised shall, notwithstanding anything contained in section 22 of the Superannuation Act, 1936 (No. 39 of 1936), not be reckoned as established service, (c) direct that the retiring age of a civil servant who is not an established civil servant may be raised to any age not exceeding seventy-five years… (5A) Subsections (3) and (4) of this section do not apply to a civil servant (other than an officer to whom the Act of 1919 applies) who is a new entrant (within the meaning of the Public Service Superannuation (Miscellaneous Provisions) Act 2004) appointed on or after 1 April 2004...”
The respondent submits that this adjudication does not have jurisdiction to investigate the complaint as this would mean setting aside or disapplying a statutory provision, i.e. section 8 of the 1956 Act. It relies on the Supreme Court authority of Minister for Justice, Equality and Law Reform v Boyle [2017] IESC 43. The provision in question is the retirement of a civil servant as a matter of law on reaching 65. Section 8(4) outlines circumstances where a civil servant’s retiring age may be raised or where they may be retained in the civil service. The subsection appears to differentiate between outcomes where the civil servant’s retiring age is raised (subsections 4(a) and 4(c)) and where they are retained (subsection 4(b)).
In this case, I note that given the complainant’s length of service, he does not fall within section 8(5A). He sought retention in anticipation of his retirement. As set out in the statute, such an application is separate to a dismissal on reaching retiring age. As the dismissal on reaching retiring age arises from statute and applying Minister for Justice, Equality and Law Reform v Boyle, it is outside the jurisdiction of this adjudication as it relates to a complaint made pursuant to the Unfair Dismissals Act (a domestic statute). For completeness, it would also appear to be a dismissal that falls squarely within the ambit of section 2(1)(b) of the Unfair Dismissals Act. |
Decision:
CA-00011856-001 Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim.
For the reasons outlined above, I do not have jurisdiction to determine the complaint made pursuant to the Unfair Dismissals Act. |
Dated: 28/11/17
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Unfair Dismissals Act
Minister for Justice, Equality and Law Reform v Boyle [2017] IESC 43 |