Dáil Éireann díospóireacht -
Thursday, 26 Nov 1942

Vol. 88 No. 19

Committee on Finance. - Electricity (Supply) (Amendment) Bill, 1942—Fourth and Fifth Stages.

Mr. Norton

I move amendment No. 1:—

In page 4, Section 3, before sub-section (8), to insert the following new sub-section:—

(8) Nothing in this section shall apply to prejudice or affect any proceedings instituted in the High Court or in the Circuit Court by a transferred employee before the 17th day of July, 1942, so far as such proceedings were grounded on the want of the consent of the Minister for Local Government and Public Health to an act to which this section applies.

One of the purposes of this Bill is to prevent legal action being taken by any former employee of the Electricity Supply Board. Section 3 (7) provides that, while other persons are prevented from taking any action against the Electricity Supply Board for compensation in respect of loss of earnings, the Bill, and the section, of course,

"shall not operate to invalidate any judgment of the High Court pronounced before the 17th day of July, 1942, declaring the dismissal of a transferred employee by the board to have been invalid for want of the consent of the Minister for Local Government and Public Health, nor shall this section apply to, prejudice or affect any proceedings in the High Court to recover from the board arrears of salary which were instituted before the 17th day of July, 1942, by a transferred employee in respect of whom such judgment and declaration was so pronounced and made by the High Court."

It is quite clear that the Minister intends in this Bill to prevent any other persons coming along and making a claim against the Electricity Supply Board. He is providing for the recognition of such legal rights as Mr. Cox had sustained for himself in the course of his proceedings against the Electricity Supply Board. While one could understand that the Minister does not desire to leave a door open on technical grounds through which a very large number of persons might ultimately pass, unless there was some control over the door and some filtering of the folk who are likely to get through, I think the Minister is unconsciously doing an injustice to other persons.

Before the judgment of the High Court was pronounced on the 17th July last, three other persons claimed that they were aggrieved by decisions of the Electricity Supply Board terminating their services for various reasons. They claimed to be entitled to compensation from the Electricity Supply Board, the compensation representing the difference between the amount of pension they got on their premature superannuation and the amount which they would have got if they had continued to be employees of the Electricity Supply Board. These three persons consulted a solicitor on the matter, and the solicitor in question communicated with the solicitor of the Electricity Supply Board. In fact, in these three cases originating summonses were issued before 17th July, 1942. In one case the originating summons was issued on 3rd December, 1941, the statement of claim was delivered on the 28th January, 1942, and a reply made by the solicitor to the Electricity Supply Board on the 11th May, 1942. In that particular case the action was ripe for trial, but the Electricity Supply Board's solicitor, I understand, advised the plaintiffs' solicitor not to proceed with the matter until such time as it was ascertained what was likely to happen arising out of what is known as the Cox judgment. The solicitor for the plaintiffs, believing the matter would be discussed in relation to any judgment delivered in the Cox case, held his hand. Nevertheless, in order to keep the door open for his clients, he issued an originating summons in another case on the 3rd January, 1942, and in a third case on the 21st January, 1942.

I understand that these cases were the subject of correspondence and discussions between the solicitor for the Electricity Supply Board and the plaintiffs' solicitor. There are only three cases concerned. Were it not for the fact that the solicitor for the plaintiffs had been led to believe that their cases would be dealt with arising out of the Cox judgment or, in any case, that they would not be statute barred either by existing or prospective legislation, the solicitor for the plaintiffs held his hand and did not definitely institute the action in the courts which, in ordinary circumstances, he would have instituted.

I understand that there are only three persons so affected. Even if the entire claim were conceded it would not involve the Electricity Supply Board in an expenditure of more than £2,500. As a matter of fact, the courts might well hold that these people were not entitled to any compensation, but in view of the fact that the originating summonses were issued before the critical date mentioned in Section 3 (7), that in fact the statement of claim had been submitted in one case and a reply filed by the Electricity Supply Board's solicitor, I think the Minister is unconsciously acting unfairly by not permitting these cases to be decided by the courts. Nobody wants to go to court to get recognition of his rights if it is possible to get recognition of his rights without going to court. If the Minister is not prepared to agree to allow these persons to go to court in order to establish such rights as they feel they have, I think the least he should do is to ensure that the Electricity Supply Board, either on its own, or by the appointment of a civilian arbitrator, will allow the merits of the cases to be adjudicated upon and the persons concerned allowed to ventilate their grievances and to recover, either by arbitration or in law, such compensation as they feel they are entitled to, having regard to the extent of the loss which they have suffered.

Minister for Industry and Commerce (Mr. Lemass)

I could not agree to accept this amendment under any circumstances whatever. What the three persons now claim as a right is in fact a ground of action against the Electricity Supply Board on a most technical point of law. On the basis of that very technical point, they are endeavouring to obtain something which it was never intended they should have and which they never thought themselves they had. Employees of a local authority cannot be dismissed or retired without the consent of the Minister for Local Government. A number of employees of the Dublin Corporation were transferred to the Electricity Supply Board, and the statute stated that they had on transfer the same rights as they had before being transferred. A person named Cox, employed by the Electricity Supply Board, was dismissed from their employment, and properly dismissed. Nobody who had any dealings with the case, the judge who determined it, or myself, or any other person familiar with the facts, would express the opinion that Cox was not properly dismissed. After a number of years had passed, he took an action against the Electricity Supply Board on the grounds that he should not have been dismissed without the consent of the Minister for Local Government. The court decided in his favour. The Minister for Local Government had many years ago sought legal advice on the matter and had been advised that the consent was not necessary in cases of that kind. I was urged from many quarters to bring, and I might have been justified in bringing forward here proposals to annul the decision in the Cox case. I did not do so because I thought that, irrespective of the merits of the individual case, it would be a bad precedent to establish. But certainly there could be no justification for giving the three other individuals who were retired from the service of the Electricity Supply Board a claim to large sums of money on the same technical point which they only realised existed after Cox had succeeded in getting his judgment.

Mr. Norton

No; surely the Minister misunderstands the position. The originating summonses in these cases were issued in 1941.

Mr. Lemass

The decision in the Cox case was given in June, 1941.

Mr. Norton

When was the final judgment given?

Mr. Lemass

There were two actions. There was an action on the technical point, and a subsequent action a year later to assess the arrears due to Cox in consequence of the judgment of June, 1941.

Mr. Norton

That is the judgment you are barring.

Mr. Lemass

That is the judgment which appeared to give him a legal right to have been retained in the employment of the Electricity Supply Board, the judgment which held that his dismissal by the Electricity Supply Board many years previously was invalid on the technical point to which I have referred. Why should we pick out these three people and give them a large sum of money? Why not give the same right to all the employees of the Electricity Supply Board who, during the past ten years, were retired or dismissed from its service? If there is, in fact, a basis of justice for the claim of these three individuals, it surely applies to all the other individuals in the same position. These individuals have no claim whatever. They were taken over by the Electricity Supply Board as transferred officers, they served in the Electricity Supply Board, and retired from its service, in the ordinary course of events, for one reason or another. Now, because of this pure technicality they think that they can sustain a claim that they should not have been retired from the Electricity Supply Board and that they can recover from the Electricity Supply Board the full amount that they would have earned in salaries if they had been retained in employment in the Electricity Supply Board during those years. It is solely on theoretical grounds that we are not moving to annual the judgment in the Cox case. He succeeded in getting a judgment in the court in his favour, was awarded a sum of money, and is getting away with it. We are trying to stop anything like that happening in future, although, in the case of such people who had instituted proceedings, which were founded on the want of consent of the Minister for Local Government and Public Health, we are proposing that they shall recover from the Electricity Supply Board any taxed costs which they incurred up to the date of the introduction of the Bill. I think that that is the farthest that justice requires that we should go. I could not, under any circumstances, agree to what Deputy Norton suggests.

Mr. Norton

Does the Minister think that it is fair that Mr. Cox, who the Minister says was properly dismissed —I do not know whether he means, by that, justifiably dismissed——

Mr. Lemass

Justifiably dismissed.

Mr. Norton

——should, in the circumstances of this Bill, have his claim recognised statutorily, apart from the legal judgment in the matter, while other persons, who were retired on pension, with no stigma whatever attaching to them, should be debarred from proceeding in the court or by way of arbitration with the Electricity Supply Board to sustain claims which were at least, as the Minister admits, as valid in law as in the case of Mr. Cox? Is the Minister aware, too, that one of the reasons given why one of these three persons was dismissed was because of the fact that the Pigeon House was closed down? As the Minister knows, the Pigeon House was never closed down,——

Mr. Lemass

It was closed down.

Mr. Norton

——although that was the reason given, and, in any case, he never worked in the Pigeon House. There is the reason that was given in the case of that man. He is barred from putting his case before the court or an arbitrator, whereas Mr. Cox, who was justifiably dismissed, as the Minister says, is enabled to get away with compensation. All I am asking is, would the Minister ask the Electricity Supply Board to review this matter, even though these people have no statutory right to go before the courts?

Mr. Lemass

The Deputy must not represent me as thinking, or setting forth in this Bill, that Mr. Cox had a right to the sum of money that he is going to get from the Electricity Supply Board. He got a legal judgment in favour of his getting the money, but that, as I said, was awarded on a technical point of law. There is no question of his having a right to it, nor can there be any question of any other person having a right to it. If the Minister for Local Government had been advised in 1931, or whenever it was that he sought advice, that his consent was technically required before a transferred officer could possibly be retired from the board, then this case would not have arisen. He was not so advised, and when the matter went before the court and it was decided that the Minister for Local Government should have given his prior consent to the dismissal of the man. These people, however, have no right. They could have, before this Bill was introduced, sustained a legal claim to it, which is very different from a natural right. In so far as they were concerned, they were employed by the Dublin Corporation, transferred to the Electricity Supply Board, employed by the Electricity Supply Board, and, on retirement, got the pensions which the 1927 Act provided for.

Mr. Norton

Of course, they were all premature pensions.

Amendment, by leave, withdrawn.

Mr. Lemass

I move amendment No. 2:—

In page 4, to delete lines 11 to 21 (Section 4), and substitute a new section as follows:—

(1) Sub-section (1) of Section 11 of the Electricity Supply (Amendment) Act, 1930 (No. 19 of 1930) is hereby amended, as from the passing of that Act, by the deletion of all words from the words "whichever of the following valuations" to the end of the sub-section, and the substitution in lieu thereof of the words "the valuation under the Valuation Acts of such hereditament or tenement which was in force at the date of such vesting Order or conveyance (as the case may be)".

(2) As soon as may be after the passing of this Act, the board shall make the payments necessary to give effect, as regards rates in respect of periods before the passing of this Act, to sub-section (1) of this section.

This is the amendment which I promised to introduce on the Committee Stage, to make retrospective the revision of the valuation of the acquired undertakings to which the section applies. The effect of it will be to make the board liable to pay rates on whatever the valuation of the acquired undertaking was on the date when it was acquired, with effect back to that date.

Amendment agreed to.

Mr. Lemass

I move amendment No. 3:—

In page 4, to delete lines 22 to 57, and in page 5 to delete lines 1 to 24 (Section 5), and substitute a new section as follows:—

(1) This section applies to every person who—

(a) at any time after the passing of the Principal Act and before the passing of this Act, suffered loss of employment by reason of the closing of a generating station in pursuance of an Order under Section 61 of the Principal Act; and

(b) was awarded, under the First Schedule to the Principal Act, a pension for his life on account of such loss of employment; and

(c) subsequently entered or reentered the service of the board; and

(d) on the date of the passing of this Act is in the continuous employment of the board; and

(e) is on the said date in receipt of the said pension; and

(f) if he had not at any time been transferred to the service of the board by virtue of sub-section (9) or sub-section (11) of Section 39 of the Principal Act, is on the said date not less than 55 years of age.

(2) In this section the expression "appropriate superannuation scheme" means, in relation to a person to whom this section applies, the superannuation scheme under the Electricity Supply Board (Superannuation) Act, 1942 (No. 17 of 1942), which would apply to him but for the provisions of sub-section (6) of section 7 of that Act.

(3) Any person to whom this section applies may, by application in writing made to the board not later than one month after the confirmation by the Minister of the appropriate superannuation scheme, elect to receive from the board the like superannuation benefits as those which he would be entitled to receive under the appropriate superannuation scheme if that scheme applied to him.

(4) The following provisions shall have effect in relation to every person to whom this section applies who makes, within the time limited by the next preceding sub-section of this section, the application mentioned in that sub-section, that is to say:—

(a) where such person leaves the service of the board otherwise than on account of being discharged for misconduct, the pension awarded to him under the First Schedule to the Principal Act shall cease;

(b) such person shall be entitled to receive from the board the like superannuation benefits as those which he would be entitled to receive under the appropriate superannuation scheme if that scheme applied to him;

(c) for the purposes of the superannuation benefits to which he is entitled under the next preceding paragraph of this sub-section, the remuneration and the service of such person shall be computed in accordance with the subsequent provisions of this section;

(d) the provisions contained in paragraphs (d), (e) and (f) of sub-section (3) and in sub-sections (4) and (6) of Section 13 of the Electricity Supply Board (Superannuation) Act, 1942 (No. 17 of 1942), shall apply as if herein reenacted in relation to such person.

(5) Where a person to whom this section applies who has not made, within the time limited by sub-section (3) of this section, the application mentioned in that sub-section, leaves the service of the board otherwise than on account of being discharged for misconduct, the pension awarded to him under the First Schedule to the Principal Act shall cease and, in lieu thereof, he shall be paid by the board an allowance for life, not exceeding two-thirds of his remuneration, calculated at the rate of one-sixtieth of his remuneration for each year of his service.

(6) For the purposes of whichever of the two next preceding sub-sections of this section apply to him—

(a) the remuneration of a person to whom this section applies shall be taken to be the aggregate of—

(i) the annual amount of the pension awarded to him under the First Schedule to the Principal Act, and

(ii) the average annual amount paid to him by the board (otherwise than on account of the said pension) during the three years ending on the day on which he leaves the service of the board, and

(b) the service of a person to whom this section applies shall be taken to be the aggregate of—

(i) the service in respect of which he was awarded his pension under the First Schedule to the Principal Act, and

(ii) his continuous service (both before and after the passing of this Act) in the employment of the board after his entry into that employment subsequent to being awarded the said pension.

(7) No superannuation scheme under the Electricity Supply Board (Superannuation) Act, 1942 (No. 17 of 1942), shall apply to or enable superannuation benefits thereunder to be received by any person to whom this section applies.

(8) Where a person is entitled to superannuation benefit or an allowance under this section from the board, he shall not be entitled to any other superannuation benefits or allowance from the board.

(9) All expenses incurred by the board under this section shall be defrayed as part of the general expenses of the board.

The object of this amendment, which, I think, meets the point in Deputy McGilligan's amendment, No. 4, is to give to the persons to whom it relates —that is, those persons who lost their employment on the closing of a generating station and who were subsequently employed by the Electricity Supply Board—a choice of benefits, on what might be termed the local government scale, or, alternatively, on the basis of whichever of the board's superannuation schemes applies in any particular case. The section also enables service, up to the date of loss of employment, to be aggregated with service following resumption of work for the purpose of the calculation of benefits.

Amendment agreed to.

Amendment No. 4 not moved.

Question—"That the Bill, as amended, be received for final consideration"—put and agreed to.

Question—"That the Bill do now pass"—put and agreed to.