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High Court addresses austerity legislation

By: Patrice O'Keeffe | Posted on: 09 Jun 2015

The recent decision High Court decision in the case of Damhnait Nic Bhradaig –v- The Employment Appeals Tribunal and Mount Anville Secondary School and others addresses austerity legislation and the definition of a public servant.

FACTS:

The Appellant, Ms. Damhnait Nic Bhradaig, is employed as a school secretary in Mount Anville Secondary School since 8th July, 1991.  Her salary is funded entirely by private funds raised through the fee structure in operation in the school.  Mount Anville is a fee paying private school.  Ms. Nic Bhradaig has no pension rights arising from her employment and her pension is wholly privately funded.

The net legal questions before the Court was whether the appellant is a public servant governed by the provisions of the Financial Emergency Measures in the Public Interest (No. 2) Act 2009 (FEMPI Act (No. 2)) and whether a reduction in her salary was lawfully imposed by her employer under FEMPI (No. 2).

Both the Rights Commissioner and the Employment Appeals Tribunal made a determination to the effect that she was a public servant and the reductions were lawfully made.  Ms. Nic Bhradaig appealed the EAT decision on a point of law brought under s. 7(4)(b) of the Payment of Wages Act 1991.

The relevant statutory provisions are as follows:

Section 1 of the FEMPI Act (No. 2) defines a public servant as “a person who is employed by, or who holds any office or other position in, a public service body” and includes an office holder.

Public service body in turn is defined and the relevant part of the definition is “a body … that is wholly or partly funded directly or indirectly out of money provided by the Oireachtas or from the Central Fund or the growing produce of that Fund and in respect of which a public service pension scheme exists or applies or may be made.

 

DETERMINATION:

Ms. Justice Baker noted that there were two tests to be satisfied:

The body must be in whole or in part funded whether directly or indirectly from Exchequer funds, and

A public service pension scheme must exist or apply or be one that may be made in respect of that body.

In the first instance, Ms. Justice Baker found that the evidence “overwhelmingly” pointed to the fact that Mount Anville Secondary School receives State funding both directly and indirectly (through the payment of the salaries of its teaching staff).  It was held that the first part of the test was satisfied.

It was also held that the second part of the test was also satisfied on the basis that a public service pension scheme does “exist” at Mount Anville School and is available to the teaching staff, albeit not available to Ms. Nic Bhradaig.

Ms. Nic Bhradaig also unsuccessfully argued that the recited purpose of the legislation is to improve public finances, and that, as there is no improvement in public finances by virtue of any reduction in her individual salary, the purpose of the legislation is not properly achieved by the reduction. Baker J. rejected this argument on the basis that the legislation is clear and while the recitals in the preamble may offer an interpretative tool, they are not to be used to displace the actual language in the operative part of a statute.

The appeal was rejected and the EAT Order affirmed.

COMMENTARY:

While sympathies may lie with the appellant, Ms. Nic Bhradaig, it would appear that the FEMPI Act (No. 2) legislation was carefully drafted to apply reductions across the board to all school employees with a view to avoiding preferential or different treatment for staff in fee charging schools.

 

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