Byrne v Minister for Defence & Ors [2019] IECA 338 (20 December 2019)

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JUDGMENT of Ms. Justice Donnelly delivered on the 20th day of December, 2019

1. The respondent to this appeal qualified as a Mechanical Engineer in 2000 and on the 28th

May, 2001, she was commissioned as an officer of the Permanent Defence Force

(hereinafter “PDF”), as a direct entry officer in the corps of engineers with the rank of

Lieutenant. On the 28th May, 2004 she was promoted to the rank of Captain on

completion of three years’ service. On the 26th November, 2012 she took maternity

leave. She availed of unpaid maternity leave from the 27th May to the 15th September,

2. On the 28th August, 2013, while the respondent was still on maternity leave, four other

(male) Captains who were direct entry officers in the same class as the respondent, were

promoted to the rank of Commandant. The respondent was not aware of the promotions

at that time. She had not been told of the convening of an Interview Board. The other

officers were only told of the process after they had been selected for interview.

3. The respondent returned from maternity leave on the 15th September, 2013. She

resigned her commission from the Permanent Defence Forces. She claims this was

because of the negative and unprofessional way she was treated. She obtained

4. On the 28th July, 2014, the respondent was granted leave to apply by way of judicial

review for various Declarations and Orders of Mandamus in relation to her qualification

(as claimed) for fixed period promotion in compliance with para. 8(4) of the Defence

Force Regulations (hereinafter “DFR”) A.15. She also sought a Declaration and an Order

of Mandamus in relation to a breach (as claimed) of various Articles of Directive

2006/54/EC on the implementation of the principle of equal opportunities and the equal

treatment of men and women in matters of employment (hereinafter “the Equality

5. On the 24th July, 2017, the respondent was granted an order from the High Court, by

way of judicial review declaring that she was qualified for promotion from the rank of

Captain to Commandant in accordance with the relevant section of the Defence Force

regulations. She also obtained a declaration that the appellants were in breach of Article

2(2)(c), Articles 14(2) to Article 15 of the Equality Directive. She was subsequently

awarded damages for that breach. The judgment of the High Court can be found using

the neutral citation as follows: Byrne v. Minister for Defence & Others [2016] IEHC 464.

6. The respondents/appellants (hereinafter “the State”) have appealed those findings. For

reasons unnecessary to go into in this judgment, it was agreed by the respondent that

the specific award as to damages would have to be set aside and remitted to the High

Court. Any such remittal is, however, subject to the determination of the substantive

(1) An issue of breach of contractual and statutory duty, based upon an interpretation

of the DFR, as to whether the respondent was qualified for promotion from the rank

(2) An issue regarding exhaustion of statutory remedies, particularly with regard to the

(3) An issue as to breach of the Equality Directive by virtue of her claim to having been

discriminated against on the ground of pregnancy/maternity leave.

8. The Defence Act, 1954 (hereinafter “the 1954 Act”), confers power on the first appellant,

the Minister for Defence, to make regulations governing service in the Permanent Defence

Force. Section 45(1) provides that “The Minister may in accordance with regulations made

9. Section 2 of the Statutory Instruments Act, 1947, as amended by the Statute Law

Revision Act, 2015 exempts regulations made, inter alia, by reference to s.45(1) from the

usual requirements of printing, notice of making, gazetting in Iris Oifigiúil and

dissemination. Therefore, although Defence Force Regulations do not have to be

published in the same way as another statutory instrument, they are, in all other respect,

10. DFR A.15 deals with, inter alia the appointment and promotion of officers. Para. 8 of DFR

A.15 provides for fixed period promotions. Para. 8(4)(b) states as follows: -

(b) [A]n Engineer Officer who is in receipt of a rate of remuneration

prescribed for officers of his rank by virtue of professional or technical

qualifications appropriate to the branch of the Permanent Defence Force in

which he is serving may be promoted from Lieutenant to Captain on

completing three years’ service in the rank of Lieutenant and from Captain

to Commandant on completing nine years’ service in the rank of Captain,

(i) His service in the rank of Lieutenant or Captain as the case may be, is

(ii) he has satisfied an Interview Board appointed by the Chief of Staff as

successfully completed a Standard Course or a course certified by the

Chief of Staff as acceptable in lieu thereof or has otherwise reached a

11. The above can be compared and contrasted with the appointment process for medical or

dental officers. Para. 8(4)(a) states that on the recommendation of the Chief of Staff –

“A Medical or Dental Officer may be promoted from Captain to Commandant on

12. The respondent’s case is based primarily on the fact that, as a direct entry officer, she

was entitled after nine years’ service in the rank of Captain to be promoted to

Commandant. Apart from para. 8(4) of DFR A.15, the respondent points to the contract

“Subject to the terms of Defence Force Regulations promotions up to the rank of

It should also be noted that the contract stated under the heading “Courses”: -

“In order to ensure that he/she will be competent to carry out the duties of higher

rank to which he/she may be promoted, an officer will be required to undergo such

13. According to the affidavit of Commandant Daragh McKevitt, the Officer in Charge of the

Commissioned Officers Management Office (hereinafter “COMO”), for the purposes of DFR

A.15 para. 8(4)(b)(iii) a “‘standard course or a course certified by the Chief of Staff as

acceptable’, includes in the context of Direct Entry Engineer Officer’s completion of both

the Engineering Standard Officer’s Course and a Junior Command and Staff Course”. It is

common case that the respondent did not complete either of these courses. There is

disagreement between the parties as to whether the respondent was notified for these

14. It was a requirement that an attendee on these courses had passed medical and fitness

examinations. There is an amount of disagreement about whether medical examinations

were even available to the respondent. The respondent accepted that she had never

passed a fitness requirement, but it was her understanding that a specialist officer was

15. The respondent outlined a long list of courses that she had completed including an

engineer young officer’s course, operational firefighting, combat specialist search and

clearance course and specialist search conversion course. The courses were a combination

of internal Defence Forces and external Defence Forces courses including desk based and

physically demanding courses. The respondent was also deployed to Liberia in 2003. She

volunteered for several tours but was not selected. She has also been an acting

16. According to Commandant McKevitt, COMO is responsible for the human resources

management of commissioned officers, including management of fixed period promotions,

within the Permanent Defence Force. He outlined that when an officer has reached or is

approaching the date of a fixed period promotion, COMO conducts an evaluation of the

eligibility of the officers concerned. Where an officer is found to be an eligible candidate

for promotion, their name is forwarded to the Corps Directors Office for confirmation. A

convening order is then processed to enable the Suitability Board to sit and assess the

suitability of eligible officers during an interview process. Where an officer is found to be

suitable by the Board, a promotion instrument is prepared and submitted for the

signature by the Minister of Defence which results in the promotion of the eligible

17. Responding to the respondent’s complaint that she had not been informed about the

interview or promotion process, Commandant McKevitt said that it was not the policy of

the respondents or the PDF to contact officers who are not deemed to be eligible for

assessment for promotion. It is only policy to notify officers when they are to present for

interviews before a Suitability Board or when they are eligible to apply to compete in a

18. The respondent claimed that a number of other engineer officers who were promoted

without having completed the Junior Command and Staff Course. Commandant McKevitt,

said that the PDF was unaware of any Engineer Officer being promoted without successful

completion of the course. On the other hand, Commandant McKevitt referred to a legal

officer who was promoted in circumstances where he had been unable to complete the

course due to the exigencies of service. He had otherwise qualified to undergo the course.

Commandant McKevitt says that as he had other professional qualifications which the

Chief of Staff deemed a satisfactory standard, he was promoted to the rank of

Commandant in the legal section. That was an application made and submitted through

the chain of command to the Chief of Staff for ratification of the officer’s professional

19. One of the issues in this appeal is whether COMO was entitled to carry out the promotion

process as it did. The State also queried whether this issue was raised in the hearing in

the High Court. The State now claims eligibility criteria were set by the Deputy Chief of

Staff; that this was done through a power of delegation to the Deputy Chief of Staff

pursuant to s.1(x) of the Ministers and Secretaries Act, 1924 and s.13(4) of the 1954 Act

and by DFR A.15, para. 7(c). The State submits that COMO operates within the JI division

of the Defence Forces, for which the Deputy Chief of Staff (Support) has overall

responsibility, COMO provides administrative support to the Deputy Chief of Staff

20. In the course of his judgment, the trial judge discussed DFR A.15 para. 8. He went

through each of the separate requirements in para. 8(4). In relation to the requirement

that the respondent’s military service be satisfactory, he noted that there was no

suggestion that it was not satisfactory. The trial judge also noted that under the

regulations, she had to satisfy an Interview Board as to her suitability for promotion and

said “it was common case that [the respondent] was never invited to the interview board

21. The trial judge held in relation to the requirement as to the completion of courses, that in

the event she did not complete a requisite course: “there had to be a determination by

the Chief of Staff as to whether she had reached a satisfactory standard. In this Court’s

view, this would have required some form of assessment, in which where the applicant

22. The trial judge found that there was a failure by the State to comply with the provisions

of DFR A.15 para. 8(4). He held that the applicant had been wrongly excluded from fixed

period promotion by the State’s failure to comply with its contractual and statutory duties.

She was not informed as to the convening of any board assessing the suitability of officers

for promotion and subsequently was not given an opportunity to put her case to the Chief

of Staff or any interview board appointed by him. In respect of the eligibility requirement

stipulated in the regulations which the appellants sought to indicate was determined by

COMO, the Court held that there was no legislative basis for the Chief of Staff’s delegation

of his role to COMO to assess an Officer’s eligibility for promotion.

23. In the judicial review, the respondent claimed that she was entitled as of right to a fixed

term promotion. In respect of this claim, the respondent relied upon the contract she had

signed; she submitted the contract entailed restrictions in respect of other service

benefits and required additional undertakings. In her statement of grounds, she claimed

that because of the restrictions that were placed on her, there was a guarantee of fixed

term promotion. This claim was reflected in the reliefs that she sought. These were

declarations that she was qualified for promotion in accordance with para. 8(4) of DFR

A.15 having served nine years in the rank of Captain. She also sought an order of

mandamus directing the first named respondent to comply with the provisions of para.

8(4) of DFR A.15. It is not clear how such an order of mandamus could have been sought

as the respondent had already resigned her commission by the time she made her

24. The trial judge made the declarations as had been sought by the respondent in her

application. He did so however, even though he referred to para. 8(4) in a manner which

recognised it as imposing conditions on the automatic right of promotion. The trial judge

held that there had been a breach of the conditions by COMO as in his view, she had not

been notified of the interview board and there had also been no assessment of her

suitability by the Chief of Staff. As stated above, he did not accept that there was a

legislative basis for the Chief of Staff’s delegation of his role to COMO to assess an

officer’s eligibility for promotion. Thus, the trial judge held that there were conditions

attached to the right to fixed term promotion, but that COMO had not applied or operated

25. At no point in his judgment did the trial judge explain how a failure to operate the

conditions set for promotion under DFR A.15, could result in a declaration that the

respondent was qualified to be promoted from Captain to Commandant. Based upon his

findings, it may or may not have been appropriate to make an order of certiorari of the

decision not to promote her, but his findings did not explain how it could be said that the

respondent was qualified for promotion to the rank of Commandant in accordance with

the relevant paragraph in A.15, when that paragraph required, inter alia, completion of

certain designated courses or having otherwise reached a satisfactory standard as

determined by the Chief of Staff. At best a declaration might have been made that she

was entitled to be promoted in accordance with DFR A.15 para. 8(4) but that had not

26. In my view therefore, without being required to deal with the issue of whether the Chief

of Staff was entitled to delegate his functions, the respondent was not entitled to the

declarations that she had sought. This was not an automatic fixed term promotion as is

provided to Medical and Dental Officers. Instead, as was implicitly acknowledged in the

judgment of the trial judge, there were certain conditions that had to be met prior to

27. Even if it is accepted that Commandant McKevitt never gave any evidence that the issue

of suitability by the Chief of Staff had been considered in the case of the respondent

specifically or indeed generally by the provision of limits as to suitability, the remedy

sought and obtained by the respondent was not one that was available under the 1954

Act and the regulations made thereunder. The legislative provisions require a

determination by the Chief of Staff as to suitability or as to the completion of certain

courses. In the absence of evidence that those conditions (and all other conditions) have

clearly been met, it is not for the courts to make a declaration that a person is qualified to

be promoted. If the failure to make such a determination as to suitability is sought to be

challenged, such a challenge must address that issue directly. It is noted that the Chief of

Staff was not a party to these proceedings and there was no direct challenge to his

decision (delegated or not) in respect of whether the respondent met the conditions set

28. Insofar as the trial judge referred to the contractual and statutory breaches which may

have entitled her to promotion, in my view, the contract that she had signed stated that

promotion was only assured subject to the terms of the Defence Force regulations. Those

regulations were DFR A.15 and for the reasons set out above, these regulations imposed

conditions which had to be met before promotion could be given. It was therefore not

open to the High Court to make a determination that she was qualified for promotion, in

circumstances where such qualification was not automatic. The regulations imposed such

functions onto the Chief of Staff (through delegation or otherwise) and the Interview

Board. At best, it was incumbent upon the appellants, through the DFR and management,

to provide the respondent with a system that would permit her to achieve that

qualification. Such a claim did not form the basis of the judicial review.

29. For the reasons set out above, I would allow the appeal in relation to the first two

The Claim for Breach of the Equality Directive - Exhaustion of Statutory Remedies

30. Section 114 of the 1954 Act, provides for, what is termed in the marginal note, “redress

“(1) If an officer thinks himself wronged in any matter by any superior or other officer,

including his commanding officer, he may complain thereof to his commanding

officer and if, but only if, his commanding officer does not deal with the complaint

to such officer’s satisfaction, he may complain in the prescribed manner to the

Chief of Staff who shall inquire into the complaint and give his directions thereon.

(2) If any man thinks himself wronged in any matter by any officer, other than his

company commander, or by any man he may complain thereof to his company

commander, and if he thinks himself wronged by his company commander either in

respect of his complaint not being redressed or in respect of any other matter, he

may complain thereof to his commanding officer, and if he thinks himself wronged

by his commanding officer, either in respect of his complaint not being redressed or

in respect of any other matter, he may complain thereof in the prescribed manner

to the Chief of Staff who shall inquire into the complaint and give his directions

(3) Every officer to whom a complaint is made in pursuance of this section shall cause

such complaint to be inquired into, and shall, if on inquiry he is satisfied of the

justice of the complaint so made, take such steps as may be necessary for giving

full redress to the complainant in respect of the matter complained of, and shall in

every case inform the complainant in the prescribed manner as to what action has

(3A) The Chief of Staff shall cause every complaint seeking redress of wrongs under this

section that is made in writing to be notified to the Minister and the Ombudsman

for the Defence Forces as soon as practicable following the making of such

31. The Employment Equality Act, 1998 Act (hereinafter “the 1998 Act”) as amended, in the

submission of the appellants, makes provision for those in the employment of the Defence

Force to access, the machinery set out in that Act for bringing a claim for redress. That

access is restricted in relation to claims based upon age or disability discrimination.

(a) to have been discriminated against or subjected to victimisation,

(b) to have been dismissed in circumstances amounting to discrimination or

in contravention of this Act may, subject to subsections (3) to (9), seek redress by

referring the case to the Director General of the Workplace Relations Commission.

(b) in any other circumstances (including circumstances amounting to

victimisation) to which the Equal Pay Directive or Equal Treatment Directive

then, subject to subsections (4) to (9), the person making the claim may seek

redress by referring the case to the Circuit Court instead of to the Director General

(9) Where a claim for redress under this Act (other than on the age or disability

the claim shall, in the first instance, be referred for redress under the procedure set

(10) Where subsection (9) applies to a claim for redress, the complainant shall not refer

(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

(b) the complainant is not satisfied with the recommendation given under section

and in a case to which paragraph (a) or (b) relates, the end of the period of time

which is applicable under subsection (5) (including, where appropriate, applicable

under that subsection by reference to subsection (6) shall be construed as—

(ii) the end of the period of 28 days from the expiration of the period

“(1) Save as provided for by section 77(10), nothing in this Part shall enable a member

of the Defence Forces to refer any case relating to employment as a member of the

Defence Forces to the Director General of the Workplace Relations Commission or

the Circuit Court or to exercise any other power conferred by the preceding

(2) If requested to do so by an officer, within the meaning of the Defence Act, 1954,

who is authorised in that behalf, the Director General of the Workplace Relations

(a) investigate any matter which has been complained of in accordance with

section 114 of that Act and which, apart from this section, would be a matter

within the scope of an investigation by the Director General of the Workplace

Relations Commission under this Part or of proceedings before the Circuit

(b) make a recommendation in respect of that matter to the officer concerned.

(3) A recommendation under subsection (2)(b) shall be in writing and shall include a

statement of the reasons why the Director General of the Workplace Relations

Commission made the recommendation and, in deciding what action is to be taken

(4) The Director General of the Workplace Relations Commission shall give a copy of

any recommendation made under subsection (2)(b) to the member of the Defence

Forces who made the complaint which gave rise to the recommendation.”

33. The State’s primary submission is that the interplay between s.114 of the 1954 Act and

s.104 and s.77 of the 1998 Act provides for an exception to the preclusion of members of

the Defence Forces from referring complaints to the Workplace Relations Commission

(hereinafter “the WRC”) or to the Circuit Court. In the State’s submission, the WRC may

obtain jurisdiction to investigate a complaint where a request is made by an officer under

s. 104(2) of the 1998 Act. The proper course of action where a member of the PDF

wished to complain of discrimination contrary to the Equality Directive, was to make a

complaint under s.114 and then a referral if that was required. In the absence of making

a claim for redress under the 1998 Act, the respondent was precluded from making a

claim for breach of the Equality Directive directly to the High Court.

34. The State submitted that the trial judge mischaracterised the redress of wrongs

procedure. Counsel on behalf of the State also submitted that the trial judge erred in law

in holding that the redress of wrongs procedure did not provide an adequate remedy.

35. The respondent submitted that the State’s submissions were only directed towards the

possibility that the respondent could make a complaint to the Workplace Relations

Commission. This argument was based upon the State’s written submissions which had

also claimed that the WRC “may obtain jurisdiction to investigate a complaint where a

36. It is certainly an unusual feature of the State’s submissions that they do not make

separate reference to s.77 of the 1998 Act. At the hearing of the appeal, counsel on

behalf of the State, made her submission based upon the interaction of both s.77 and

s.104 of the 1998 Act as well as s.114 of the 1954 Act. It seems to me therefore that it is

right and appropriate that the Court must rely upon all three of the said sections in

37. The respondent submitted that there is an inescapable circularity to the pathway to the

relief to the statutory employment equality scheme. Her counsel submitted that a

member of the PDF has no entitlement to complain directly to the Workplace Relations

Commission. She can only do so through s.104 which requires her to utilise the process

under s.114 of the 1954 Act. Even then, the respondent has no control over the referral

to the process as this is dependent on the officer’s discretionary decision to make a

request. This is in contrast to the State’s submission that s.77(10) gives a direct

entitlement to a complainant, such as the respondent, to apply for redress. The State

accepted that the right to complain is time deferred but submitted that no challenge had

38. The respondent submitted that on its face, s.114 does not require an officer to make a

complaint but instead uses the permissive phrase “may complain”. In my view, the use of

the word “may”, indicates permission for a person who thinks they are wronged to

complain to their commanding officer. No officer can be compelled to make a complaint

even if they feel wronged. A failure to make a complaint however, may have implications

for any other proceedings they may wish to bring. Since the State (Abbenglen Properties

Ltd) v Dublin Corporation [1984] I.R. 381, it is an accepted tenet of the law of judicial

review that where an alternative remedy exists, the courts will exercise its discretion not

to grant relief by way of judicial review unless the interests of justice otherwise dictates. I

will return to the issue of judicial review later. I will now turn to its impact on the right of

the respondent as a member of the PDF to make a claim for redress under the 1998 Act.

39. Having considered the relevant sections of the 1998 Act together with s.114 of the 1954

Act, I consider that they do not represent the finest example of parliamentary drafting.

The interpretation requires moving between one Act to another Act, from one section to

another section and from one sub-section to another sub-section. These preliminary

remarks do not imply that the interpretation of the legislative provisions is therefore other

than clear; rather, the point is made that the particular drafting style requires those

seeking to understand the legislation to make a determined and sustained effort to ensure

that they remain on the right path within the legislative labyrinth. It is not too much to

ask that Acts of the Oireachtas be readily accessible to all without the need for multiple

40. I will start the process of interpretation with s.104 of the 1998 Act. At the outset, I note

that the section applies to those in employment of the Defence Force. For ease of

reference, I will simply refer to PDF members as this is the relevant employment situation

41. Section 104(1) prohibits PDF members making references of cases to the Director General

of the WRC or the Circuit Court, save as provided for by s.77(10) of the 1998 Act. By

virtue of how it is phrased, s.104 is therefore subject to the earlier provision in s.77. This

reference in itself is hardly objectionable. However, when turning to look at s.77(10) the

first words are, “where subsection 9 applies to a claim for redress…”. This necessitates

returning to ss.9. As can be seen above, ss.9 states that the claim for redress in the first

instance be referred for redress under the procedure set out in s.104 of the 1998 Act.

42. Turning back to s.104, and taking a closer look at its provisions, it provides that if

requested by an officer within the meaning of the 1954 Act who is authorised in that

behalf, the Director General of the WRC shall investigate any matter which is complained

of within s.114 of that Act. The reference to “officer” in this subsection is understood by

both parties to this appeal to mean an officer dealing with the s.114 complaint rather than

43. The crucial issue therefore, is whether the legislation actually provides the respondent

with a right to claim redress under the 1998 Act in her own capacity or if her access to

the mechanism of redress is subject to another officer’s discretion. In my view, it is

important to bear in mind that the substantively relevant provisions under s.77 and s.104

of the 1998 Act were provided under the 1998 Act as enacted. The long title to that Act

demonstrates that it was, inter alia, an Act to make further provision for the promotion of

equality between employed persons and was implementing Council Directive No.

76/207/EEC on the implementation of the principle of equal treatment for men and

women in employment (hereinafter “the Equal Treatment Directive”). The Equal

Treatment Directive has been held by the Court of Justice to apply to the armed forces

44. Further amendments to s.77 and s.104 were made by the Equality Act, 2004. The long

title to that Act provides that it was, inter alia, an Act to amend the 1998 Act to

implement the Equal Treatment Directive. That Directive applies to military personnel as

Article 3(4) gave permission to Member States to provide that the Directive, insofar as it

relates to discrimination on the grounds of disability and age, shall not apply to the armed

forces. That exemption was availed of by Ireland in amending the 1998 Act by the

45. Section 77(9) provides that a claim for redress relating to PDF members must be made in

the first instance under s.104 of the 1998 Act. As outlined above, the first subsection of

that section states that, “[s]ave as provided for by s. 77(10), nothing in that part shall

enable a member of the Defence Forces to refer any case relating to employment as a

member of the Defence Forces to the Director General of the Workplace Relations

46. Subsection 2 of s.104 is the section which provides the mechanism for referral by an

authorised Defence Forces officer that the Director General of the WRC investigate any

matter complained of within s.114 of the 1954 Act and which would, apart from this

section, be a matter otherwise within the scope of investigation by the Director General of

the WRC or of proceedings under the Circuit Court under s.77(3) of the 1998 Act. Turning

back to s.77(10), this makes express provision for those complaints that come within

ss.9, i.e. a complaint for redress of a PDF member. A PDF complainant must wait a period

of 12 months after the referral under s.104 to which the claim relates and the procedures

under s.104(2)(a) have not been requested or have not been completed, or the

complainant is not satisfied with the recommendation given under s.104(2)(b) on the

47. Much time at the hearing of this appeal was spent addressing the meaning of “referral

under section 104” as contained in s.77(10)(a) of the 1998 Act. The State submitted that

this meant the referral under s.114 of the 1954 Act i.e. the complaint by a member to a

superior officer. The respondent submitted that the phrase meant the referral by the

authorised officer under s.114 of the 1954 Act or, in the alternative, that the phrase was

so unclear that it could not be interpreted in a manner which provided a Defence Force

48. From those submissions, the issue can be narrowed down to whether “referral under

section 104” in s.77(10)(a) means, (i) referral by the authorised officer or (ii) links back

to “referred for redress under the procedure set out in section 104” as set out in ss.9

49. In interpreting the sections, it is necessary to read the 1998 Act as a whole and to bear in

mind that they are implementing EU Directives on equality and non-discrimination. The

sections interplay with each other and it is important to understand the effect of that

interplay. The references to “complainant” in s.77(10) and in s.77(9) to the “claim in the

first instance be referred under the s.104 procedure”, envisage a complainant having a

right to make a claim for redress that is independent of others, albeit that it is a claim

subject to certain procedural limitations. Moreover, s.77(9) envisages a claim for redress

under the Act that is wider than simply the right to refer to the Director General of the

WRC save for the exclusion of the age and disability ground. Therefore, on issues such as

breach of equality between men and women and victimisation, s.77(9) gives a right to

refer to the Circuit Court. It is noteworthy that s.104 only permits the authorised officer

to refer the claim to the Director General of the Workplace Relations Commission.

50. Furthermore, s. 77(10) provides for a time deferred aspect to a complainant’s right to

claim for redress. These time deferrals refer specifically to the procedures under

s.104(2)(a) not being requested or not being completed. The reference to the procedures

not being requested implies that the claim may still be made where the authorised officer

has not used his or her power to refer the matter to the Director General. In light of the

above, it seems to me that the referral for redress under the procedure set out in s.104

cannot be restricted to the authorised officer’s right to refer to the Director General.

51. Indeed, even if the sections cannot be interpreted as providing for a clear right for a

member of the PDF to make his or her own claim for redress, then in my view, the

provisions are ambiguous as they provide either for a referral by an individual member of

the PDF or only for a situation where an authorised officer has already made a referral

under s. 104 of the 1998 Act. It could also be, however, the provisions are obscure

because they apparently provide for a personal complaint but appear to engage in circular

reasoning without providing for a clear path to redress. Additionally, if one was to hold

that a claimant did not have a right of direct access to the redress provisions of the Act,

then the provisions of s.77(9) and s.77(10) would be entirely otiose as the complainant

would never have the right to refer and the time limits would not matter. That would be

52. Section 5 of the Interpretation Act, 2005 (hereinafter “the 2005 Act”) requires a provision

which is either obscure or ambiguous or which on a literal provision would be absurd or

would fail to reflect the plain intention of the Oireachtas, must be given a construction

that reflects the plain intention of the Oireachtas where that can be ascertained from the

Act as a whole. As stated above, the Act as a whole was intended to implement various

EU Directives on equality and non-discrimination, including the Equality Directive. The Act

itself intended to provide access to the redress provisions (save for age and disability

grounds) for members of the Permanent Defence Forces. The Act, when combined with

the provisions in s.114 of the 1954 Act, intended to set up a particular pathway for

members to claim such redress. It is worth noting that in a hierarchical structure such as

the PDF, reliance on an internal complaints system built into the command structure for

the commencement of a claim may serve a particular function vis à vis the maintaining of

good order and discipline. That is not the basis of my interpretation of the relevant

53. In my view, the plain intention of the Oireachtas in enacting the 1998 Act as amended by

the 2005 Act, was that a member of the PDF, who had a complaint covered by the scope

of the 1998 Act and who wished to claim redress under the Act, was obliged to make a

claim under s.114 of the 1954 Act. If the authorised officer did not make the referral

under the 1998 Act or the referral was not complete, the member of the PDF had a right

to make her own complaint after a period of 12 months elapsed from the date she made

her s.114 complaint or, if she is not satisfied with the recommendation, she can make a

54. It is also of some importance that even if the ordinary principles of statutory

interpretation do not permit the interpretation I have given to these provisions, the

principle of conforming legislation under EU law requires an interpretation of national law

in the light of the wording and the purpose of the Directive to achieve the result

envisaged by the Directive. This conforming interpretation must be made as far as

possible, but a conforming interpretation cannot be given if it breached the principle of

legal certainty or if it would be contra legem to so interpret the national legal provisions.

Thus, if the construction of the Act does not bear any such conforming interpretation, it

cannot be so construed. I am of the view that where I have identified the issue as to

whether the phrase in s.77(9) “be referred for redress under the procedure set out in

section 104” can be interpreted as meaning the claim under s.114, I am satisfied there is

nothing in the 1998 Act which prohibits such an interpretation. For the reasons set out

above, I am satisfied that a construction of the Act which is in conformity with the

objectives of the Equal Treatment and Equality Directives, namely the provision of redress

for those persons including members of the armed forces, whose rights under the said

Directives are violated, means that a complainant member of the PDF who has made a

complaint under s.114, is entitled to claim redress under the Act in her own right provided

55. In the course of their submissions, the State argued that the redress of wrongs

mechanism set out in s.114 of the 1954 Act was the appropriate mechanism for disputes

for member of the Defence Forces by the Oireachtas. Counsel submitted that no claim

had been made by the respondent in her proceedings that there had been a failure to

transpose the regulation nor was there a claim that s.114 did not provide her with an

effective remedy. There was no evidence on affidavit as to any alleged shortcoming within

the regime. The position this Court finds itself in, is that there is no evidence as to how

the WRC views this piece of legislation, i.e. does the relevant body tasked with

adjudicating on claims for redress for breaches of employment equality legislation accept

direct complaints from members of the PDF provided certain time limits have been

56. In my view, the point made by the State is a valid one and goes towards the question of

whether judicial review was the appropriate remedy. If the WRC had accepted jurisdiction

as to a complaint from the respondent, the respondent would have had full access to the

redress mechanism set out under the 1998 Act. Moreover, as the State has pointed out,

the recent ruling of the CJEU in the case of The Minister for Justice and Equality and

Commissioner of An Garda Síochána v. Workplace Relations Commission (Case C-378/17)

demonstrates that the WRC has wide powers, even permitting it to disapply Irish

57. In the High Court, the trial judge held that s.114 was an internal Defence Force dispute

mechanism and that it offered little to the respondent by way of adequate remedy. That

finding was made as the trial judge held “there exits only a possibility of a complaint such

as the applicants [sic] being referred on to the Workplace Relations Commission under

s.114”. In my view, this is a problematic finding not least because it did not address the

issues of interpretation as set out above. Moreover, it is a finding amounting to a failure

to transpose the Equality Directive without that having been expressly addressed by way

58. The State submitted that the High Court did not have jurisdiction to deal with the

substantive merits of the complaint raised by the respondent as a member of the

Permanent Defence Forces. The place for such a claim they submitted is via the

mechanism provided for by statute. They rely upon the following dicta of Charleton J. in

the High Court in Doherty v. South Dublin County Council (No. 2) [2007] 2 I.R. 695: -

“Where, however, an Act creates an entirely new legal norm and provides for a new

mechanism for enforcement under its provisions, its purpose is not to oust to the

jurisdiction of the High Court but, instead, to establish new means for the disposal

of controversies connected with those legal norms. In such an instance,

administrative norms, and not judicial ones are set: the means of disposal is also

administrative and not within the judicial sphere unless it is invoked under the

legislative scheme. In the case of the Planning Acts, in employment rights matters

and, I would hold, under the Equal Status Acts, – , these new legal norms and a

new means of disposal through tribunal are created. This expressly bypasses the

courts in dealing with these matters. The High Court retains its supervisory

jurisdiction to ensure that hearings take place within jurisdiction, operate under

constitutional standards of fairness and enjoy outcomes that do not fly in the face

59. The respondent submitted that the mechanism only provided her with the possibility of

claiming redress under the Act and therefore she could not be restricted in her access to

the courts in claiming redress for a breach of her rights under the Equality Directive.

Furthermore, she submitted that the Directive was directly effective and that they were

entitled to rely upon it in the High Court. She relied upon a series of cases which made

reference to the principle of “effective judicial protection” as protected under EU law.

60. In my view, the respondent as a member of the PDF was provided with a mechanism to

claim redress under the 1998 Act. The only difference between an ordinary employee and

a member of the PDF in claiming redress, was that in order to make a claim for redress a

member of the PDF has to engage in the s.114 complaint procedure under the 1951 Act.

A member of the PDF potentially will be time-delayed in making a complaint under the

1998 Act, if the authorised officer did not refer her case to the Director General of the

61. In her judicial review proceedings, the respondent made a claim for redress directly to the

High Court. It was not claimed that the time limit meant that there was a failure to

transpose the Equality Directive, which was unsurprising as the respondent’s contention

was that she had no right to make any complaint. Indeed, in her proceedings, she did not

make a claim that there was a failure to transpose the Equality Directive, again that may

have been on the basis that in the absence of any right to claim under the Act, they

62. This judgment has established that the respondent had access to the redress mechanism

under the 1998 Act. Once that has been established, she can no longer claim that she had

no effective judicial protection other than by access to the High Court. Therefore, she was

subject to the ordinary rules of seeking relief by judicial review; if she has an adequate

alternative remedy then unless the interests of justice otherwise dictate she was obliged

to utilise that remedy in the first place. The only potential aspect of her submission is that

the 1998 Act provides lack of effective judicial protection reliefs to the time-deferred

nature of the right to claim. In that regard it is noted that the respondent did not make

any claim in her proceedings that there was a failure to transpose the Equality Directive

because of the time delay inherent for a member of the PDF making such a claim.

63. In my view the respondent has not established in her case that the remedy was

inadequate or inappropriate. A complaint under s.114 might have resolved the entire

matter without the necessity for either the authorised officer or the respondent to make a

referral/claim under the relevant provisions of the 1998 Act. In addition, an authorised

officer could easily have made his or her own referral in a speedy manner and thus there

would be no time delay on access to a least part of the mechanism set out under the

1998 Act. Importantly however, if a challenge to the time limit had been expressly made,

it would have permitted the State to present a case in the High Court which would have

addressed issues as to why the State contends that the imposition of a requirement to

make a complaint under s.114 together with a time-delay on access to the 1998 Act

mechanism was required in the situation of persons in the employment of the Defence

64. I am satisfied however that the respondent has not made out that there has been a

breach of her right to effective judicial protection in the scheme set out in the Act. She

was entitled to make a claim under the 1998 Act, to do so however, she had to follow the

procedures laid out in s.114 of the 1954 Act and thereafter follow the procedural

requirements under the 1998 Act. Given her access to a specialised mechanism for

redress for an alleged breach of the Equality Directive, the interests of justice do not

require her to be permitted to take these proceedings by way of judicial review.

65. The State’s argument that there was a mandatory obligation on a member of the PDF or

indeed any person claiming for redress under the 1998 Act, to utilise the mechanism

provided in the 1998 Act and therefore, there was an absolute bar on claiming by way of

judicial review or otherwise, does not require to be adjudicated in the context of the

finding that I have made in respect of the failure to utilise an alternative remedy prior to

66. In circumstances where I have held that the respondent ought to have made a claim

under the provisions of the 1998 Act which required a complaint to be made under s.114

of the 1954 Act and that judicial review was not the appropriate forum, the finding of the

trial judge that there had been a breach of the Equality Directive cannot stand.

67. In the course of this judgment I have held that the provisions of DFR A.15 do not allow

for automatic fixed term promotion for engineering officers of the rank of Captain to the

rank of Commandant. There were certain conditions that a candidate for promotion had to

fulfil before promotion could be achieved. In those circumstances, the trial judge was not

68. I have also held that the provisions of the 1998 Act permitted the respondent to make a

claim for redress once she had made a complaint under the provisions of s.114 of the

1954 Act. In the absence of utilising that alternative remedy the respondent was not

entitled to apply for a declaration that her rights under the Equality Directive had been

69. Accordingly, I would allow this appeal.

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You are here: BAILII >> Databases >> Irish Court of Appeal >> Byrne v Minister for Defence & Ors [2019] IECA 338 (20 December 2019) URL: http://www.bailii.org/ie/cases/IECA/2019/2019IECA338.html Cite as: [2019] IECA 338

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