September 24, 2022

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A retired garda sergeant has been told the Workplace Relations Commission does not have the authority to rule on a pension dispute dating back to the early 1990s.

Brendon K Colvert, a former garda sergeant who spent much of his career investigating fatal traffic crashes up to his retirement in 1983, has taken a claim under Section 81E of the Pensions Act 1990 (as amended). He alleges he has been receiving a lower pension than others of the same salary scale for over two decades having retired in 1983 before enhanced benefits were negotiated for his grade in the early 1990s.

The complaint was called on for hearing at the Workplace Relations Commission (WRC) headquarters at Lansdowne House, Dublin, on Friday (August 19th). Mark Finan BL, who appeared for the Department of Justice on the instructions of State solicitor Aoife Burke, said the WRC did not have the jurisdiction to hear the claim.

He said that for the WRC to hear a claim under the provision cited in the complaint it would have had to be taken within six months of the end of the complainant’s employment – with provision to extend it to a year. “Mr Colvert retired 35 years ago,” he said.

The adjudicating officer, Breiffni O’Neill, initially indicated that he was minded to hear the facts of the case and decide any preliminary matters in conjunction with a ruling on the substance of the complaint. However, Mr Finan argued that the Pensions Act had set out a “gateway provision” which required the WRC to satisfy itself that the statutory complaint was in time before proceeding to a full hearing.

He said Mr Colvert’s complaint could only be a matter for a court with the jurisdiction to rule on contract law. “That may be a good case, that may not… [but] you couldn’t get a clearer pronouncement as to jurisdiction,” Mr Finan said. “This applies as law, it’s not a technicality.”

The complainant’s granddaughter, Mairead Loughman, who spoke for him at times during the hearing, said the alleged breach was a continuing one as it was happening “every single month”.

“It’s a tactic by the department to frustrate every effort to communicate with them… I as an individual, nobody would listen to me,” Mr Colvert said.

Mr Finan said it was not a “tactic” and that the law applied to everyone.

Mr O’Neill said he was limited in his jurisdiction to the provisions of the Act under which the complaint had been brought.

“My counter to that is we’ve been frustrated. There’s been no response,” Mr Colvert said, adding that the complaint could not have been made any earlier than a decade from his retirement in 1983 as the Garda pension talks affecting his grade had been in 1993.

“My hands are tied. I can’t hear a case or a complaint where it has been made after 12 months,” Mr O’Neill said.

Mr Colvert said it was “impossible” for him to comply with the 12-month deadline and that his complaint was always going to come after a matter of years.

“I understand there may be other courses open to you. I can’t open those boxes. I can only open those boxes that are in front of me,” Mr O’Neill told Mr Colvert.

He told the parties he would issue his decision on the preliminary matter to them in writing.

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