Complainant

Respondent

Parties

Yvonne  Nolan

Micheál Martin Minister For Defence

Representatives

Mr Desmond Ryan BL instructed by Mr Joseph Dolan of the Chief State Solicitor's Office

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-00055533-001

10/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00055533-002

10/03/2023

The Complainant was an officer in the Defence Forces from November 1991 until the 26th of July 2016 when she was medically discharged.

The Complainant submitted these complaints on the 10th of March 2023. The Complainant has been involved in challenging various internal problems within the Defence Forces and alleges that she was and has continued to be targeted for this work.

On the 10th of March 2023 the Complainant submitted complaints that she was victimised for taking an action set out in Section 74 of the Employment Equality Acts and that she was penalised or threatened with penalisation for having made a protected disclosure. These complaints were brought under the Employment Equality Acts 1998-2015 (“EEA”) and Protected Disclosures Act 2014 (“PDA”).

In her complaint form the Complainant points to the following acts which she alleges are victimisation and/or penalisation.

1.      In December 2021 the Complainant sought to attend an upcoming gathering of retired officers but she received no reply to her request.

2.      On the first of December 2022 the Complainant received an email letting her know that her service medals, which she had previously sought, had been found. The Complainant had previously been told that there were no records of the medals issuing and believes these medals were deliberately withheld. The Complainant was also refused a retirement presentation.

3.      The Complainant sought to rejoin the Defence Forces. She was informed on the 13th of October 2022 that her application was ineligible but then the matter was put under review.

The Respondent rejects the Complainant’s allegations and raises preliminary objections related to the application of both the above acts to the Defence Forces, namely Section 77(7) of the EEA and the scope of Section 12 of the PDA. 

The Complainant alleges that she has been persistently victimised, discriminated against and penalised by the Defence Forces for challenging bullying behaviour, discrimination and wrongdoing.

The Respondent rejects the Complainant’s substantive claims. They also respectfully submit that the WRC does not have jurisdiction to hear them.

Context of complaints

This decision mostly concerns preliminary issues raised by the Respondent, however, I do feel it is important to acknowledge that since these complaints were submitted it has been widely accepted that the Defence Forces have significant internal problems relating to some of the issues the Complainant has sought to highlight. Indeed, just after these complaints were submitted in March 2023 the Report of the Independent Review Group on Dignity and Equality issues in the Defence Forces was published by the Respondent.

While this report did not refer to the Complainant’s specific allegations it did conclude that Women are viewed as occupying a low status in the Defence Forces. Gender and particular hypermasculinities are strong organising forces in the culture. This is reflected throughout this Review, not only in individuals’ lived experience as described to us, but also in the various forms of independent analysis undertaken……Notwithstanding the role of the Defence Forces, neither men nor women in the Defence Forces are working in a safe working environment. The Report also raised serious concerns about the medical boarding process which was the process by which the Complainant left service.

Pre Hearing Correspondence

The WRC wrote to the Complainant on the 28th of March 2023 noting that she had to exhaust the procedures set out in Sections 77(9) and 104 of the EEA, in respect to her claim under that act.

Section 79(9) of the EEA states that: Where a claim for redress under this Act (other than on the age or disability ground)—(a) relates to employment in the Defence Forces, and (b) is made by a member thereof, the claim shall, in the first instance, be referred for redress under the procedure set out in section 104.

Section 104 refers to the process for internal complaints set out in Section 114 of the Defence Forces Act 1954 which allows for members to complain to a superior officer or the Chief of Staff. It sets out that the Defence Forces may refer such an internal complaint which falls within the scope of the Employment Equality Act to the Director General of the WRC for recommendation.  

Section 79(10) is also relevant to this issue, this states: Where subsection (9) applies to a claim for redress, the complainant shall not refer a case under subsection (1) or (3) unless—(a) a period of 12 months has elapsed after the referral under section 104 to which the claim relates and the procedures under section 104(2)(a) have not been requested or have not been completed, or (b) the complainant is not satisfied with the recommendation given under section 104(2)(b) on the claim.

The WRC further sought to clarify whether there were any complaints related to alleged breaches within 12 months of the date of the submission of the complaints.

There was no reply to this letter and the WRC wrote again on the 8th of December 2023 to which the Complainant replied stating that she had raised many internal complaints and had therefore satisfied the above exclusions. She pointed to the refusal to arrange a retirement presentation and the discovery of her medals occurred in December 2022 which was within the 12 month timeframe. She was also clear that her attempt to rejoin the Defence Forces was ongoing.

On the 19th of June 2024 the Complainant was informed that she was not eligible to rejoin the Defence Forces.

These matters were referred for hearing in August 2024 and the Complainant made two separate written submissions in advance. In these she sought to have the refusal to consider her reapplication treated on the basis of disability discrimination. She did not submit a new claim to the WRC related to discriminatory hiring practices. The Complainant also sought to include new matters from May 2024 related to potential religious discrimination and a previously ordered WRC review of training and equality policy however she did not submit new complaints to the WRC regarding these matters. The Complainant also sought to raise complaints related to her constitutional rights ungrounded in any legislation which I would have jurisdiction in.

The Respondent failed to make submissions until just before the hearing.

Respondent Preliminary Objections

The Respondent pointed out that the Complainant, as a former member of the Defence Forces, is a ‘worker’ and does not fall within Section 12 of the PDA which concerns complaints of penalisation to the WRC, this only applies to ‘employees’ as defined by the act. The Respondent referred to Corporal Anthony O’Donoghue v The Air Corps (Irish Defence Forces) ADJ-00043681 which considers the application of this section in detail.

The Respondent also referred to Section 77(7) of the EEA which outlines that Where the complainant’s claim for redress is in respect of discrimination … (b) by the Minister for Defence in the course of a recruitment process for the Defence Forces … the complainant shall in the first instance refer the claim for redress to the holder of the recruitment licence concerned or, as the case may be, to the Minister for Defence…

This matter was opened in a hearing on the 1st of August 2024 and the preliminary objections were outlined by the Respondent’s counsel. I adjourned the hearing and invited the Complainant to provide replying submissions and due to her engagement with the ongoing Tribunal of Inquiry she requested that these not be required until the 8th of October 2024.

The Complainant made submissions on the 28th of August 2024 and the 9th and 11th of October 2024 addressing the Respondent’s preliminary points. These were considered together with her previous submissions of the 19th and 24th of July 2024.

Summary and consideration of Complainant’s reply to preliminary objection -ESA S.77(7)

Regarding Section 77(7) of the EAA the Complainant submitted that she had complied with the requirements of the subsection. She referred to a number of emails with the Minister’s office and the Defence Forces from 2024.

This section requires a Complainant to first instance refer the claim for redress to the Minister for Defence before seeking redress by referring the case to the Director General of the WRC. The Complainant referred this complaint to the Director General on the 10th of March 2023. The communications with the Minister she has cited all occurred after the referral of the matter to the WRC.  As such she could not have complied with the requirement set out in Section 77(7).

Summary and consideration of Complainant’s reply to preliminary objection -PDA Scope of S.12

Regarding the scope of Section 12 of the PDA the Complainant submitted erroneously that the Act provides that a Worker is an Employee. It actually sets out in Section 3 that the definition of a Worker encompasses Employees, not the other way around.

The Complainant then referred to the code of practice in determining employment status, I am of the view that this is not relevant in determining the definition of employee in this act where there is specific wording regarding members of the Defence Forces.

The Respondent points out it in their submissions been established by the Supreme Court in McGrath v Minister for Defence [2010] that members of the Defence Forces do not work under a contract of employment and are officer holders, not employees. The Complainant accepts this position but also argues that the definition of office holder means that members of the Defences Forces are actually civil servants and therefore come under the scope of the act due to Section 3(2)(a), I do not accept this argument and the authorities that the Complainant cites Murphy v The Minister for Social Welfare [1987] 1 IR 295 and McLoughlin v Minister for Social Welfare [1958] IR 1 do not support this argument as they only concern the classification of civilian public servants. 

More importantly these arguments all entirely ignore the explicit wording of Section 3(2)(b). I also do not agree that the Complainant position is aided by her no longer being a member of the Defence Forces. Section 3(2)(b) is clear that a former member of the Defence Forces is a Worker for the purposes of this act. Section 12 is also clear that it only applies to employees.

Victimisation Complaint- EEA S.79(9)

Over the course of her submissions the Complainant did move their focus to alleging that the acts of detriment she alleges occurred were related to protected disclosures and that the EEA claim primarily related to her rejection for re-enlistment, however she did not at any point withdraw the argument that the alleged acts of detriment she suffered were also acts of victimisation prohibited under the EEA.

As such there was potential to consider the complaints regarding the Complainant’s service medals and failure to offer her a retirement presentation if Section 79(9) had been complied with. However, the Complainant has provided no evidence that a claim for redress for equality related victimisation was referred under the procedure set out in section 104 before this claim was initiated.

CA-00055533-001

For the reasons set out above I find that I do not have jurisdiction to consider this complaint further.

CA-00055533-002

For the reasons set out above I find that I do not have jurisdiction to consider this complaint further.