Complainant

Respondent

Parties

Paul  O Dwyer

Kildare County Council

Representatives

Barnaba Dorda of SIPTU

Eamonn Hunt of the LGMA

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-00053675-001

13/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00053675-002

13/11/2022

Mr. O’Dwyer commenced employment as a retained Fire-fighter with the Respondent Council on the 6th of June 1988. By the time the Complainant’s employment ended in June 2022 he had risen to the position of Substation Officer at Naas Fire Station.

The Complainant, upon joining, the Respondent had a contract which identified his retirement age as 55 but allowed a Substation Officer to continue up to 65 years of age at the discretion of the Chief Fire Officer.

In 2003 a collective agreement (called “Expert Group Report”) was reached between Unions and the County Councils for retained firefighters across the country. This provided for a standard retirement age for all firefighters of 55 years old with discretion to extend up to 58 years old.

In 2020 the LGMA and SIPTU agreed to push out the compulsory retirement age to 60 by way of another collective agreement.

The Complainant believes that the Respondent had discretion to keep him in his position until 65 by virtue of his original contract of employment. They refused to consider his requests to stay on. As such the Complainant was required to find alternative work. He resigned only after he had exhausted his attempts to stay in the job and after he had been offered a new role as a caretaker in one of the Respondent’s libraries on substantially less pay.

The Respondent’s position is that their compulsory retirement age of 60 was entirely legitimate and reasonable.

The Complainant attended the hearing and gave evidence under oath. He was represented by his Union Official Mr Dorda who made detailed written and oral submissions on his behalf. Where relevant the Complainant’s evidence has been referred to in the conclusions section of the decision.

The Complainant’s argument under this act was that the Respondent in moving to compulsorily retire him constructively dismissed him as he was required to find alternative work before his retirement came into effect.

Mr Dorda referred to a number of authorities related to the Employment Equality Act. These were not relevant in determining the Complainant’s case for collective dismissal under the Unfair Dismissals Act.  

He also referred to the case of Reilly v Drogheda Borough [2008] IEHC 357. In this case a retained firefighter successfully secured an injunction preventing his compulsory retirement due to him having a contract which predated the 2003 agreement and which provided for a higher retirement age.

He also referred to the EAT decision in UD 924/2004 which also recognised the carveout provided for in the 2003 agreement.  

The Respondent attended represented by Ms Orla McGee of HR and Mr Niall O’Riordan Acting Chief Officer. They were represented by Mr Hunt of the LGMA who made detailed written and oral submissions.

The Respondent’s position is that the Complainant chose to resign ahead of his expected retirement date. He was not obliged to and the Respondent was applying a well-established retirement age which the Complainant was well aware of due to his long standing involvement in the Union.

They submit the Reilly case was very different to this matter and that above mentioned EAT decisions were actually overturned by Circuit Court Judge Ray Fullam in December 2007.

Whatever the arguments about the Complainant’s contract the version he seeks to rely on never contained an entitlement to work past 60 but instead allowed the Respondent discretion to allow him to work past 60.

Findings of Fact

It should be noted that most the relevant facts in this case are not disputed between the parties.

The Complainant joined the Respondent on the 6th of June 1988 as a retained firefighter.

His original contract of employment stated that the retirement age was 55 but for officers who could work up to 65 at the discretion of the chief fire officer. Specifically, it states that: Station Officers and Sub Officers may continue until 65 at the discretion of the Chief Fire Officer.

The Complainant became active as the shop steward for him and his colleagues in the Naas depot.

In 2003 a collective agreement (called “Expert Group Report”) was reached between the retained firefighters and local authorities nationally.  This collective agreement was the culmination of a detailed process where a group of four persons, a local authority rep, a union rep, an occupational health physician and an independent chair, reviewed the age of retirement. This process was grounded in expert advice.

A review of the agreement provides the following key conclusions:

1.       The nature of work performed by retained firefighters is hazardous and physically demanding.

2.       It is recognised that the roles of sub-officer at incidents are not exactly the same as the firefighter category/grade. However, these jobs are still demanding and stressful and the same minimum physical standards and maximum retirement age as for firefighters should apply to these positions.

3.       All retirement ages for all retained firefighters were set at their 55th birthday with a possibility, on a discretionary basis, to extent it to maximum of 58th birthday.

4.       The terms were to apply to all retained Firefighters with the exception of those whose written contracts of employment specified a retirement age beyond age 55.

The Complainant was promoted to driver mechanic and then in 2009 to substation officer. In 2009 the Complainant was issued with a new contract. Despite the carveout the Complainant had under the terms of the 2003 agreement this contract outlined the terms of the 2003 agreement and provided for a retirement age of 55 with discretion to extend it up to 58. The Complainant’s evidence was that he felt compelled to sign it but he always thought his original contract would be honoured.

In 2017 the Complainant approached his 55th birthday. The Respondent, by way of a CEO’s order, extended out his contract to 3rd of September 2018. One day before his 56th birthday. This order referred to a medical report and recommendation from the Senior Assistant Fire Officer both recommended that the Complainant could carry on until that date.

This process was completed annually extending him a number of times until the 3rd of September 2022.

The later extensions involved the Complainant signing a new fixed term contract. This contained an express provision that the Respondent would not grant any extension so as to bring someone past their 58th birthday.

Throughout this process the Complainant continued to refer to his original contract and request to work past 60. He gave evidence of conversations with the then Chief Fire Officer as well as conversations with HR. The Respondent’s position was consistent in that he would not be allowed to work past 60. From the Complainant’s evidence the Chief Fire Officer didn’t appear to believe that she would have discretion to allow him to work past 60 and that she would not support such an application if she did have that discretion.

There is no evidence of any retained fire fighter in Kildare ever having worked past 60.  

As the Complainant was approaching his 60th birthday and the Respondent position appeared to be definitive he began looking for jobs. He was offered a role in their library division and requested a delayed start to allow him to see out his final few months, but this was refused. Cognisant of his financial responsibilities he resigned to take up the post ahead of his expect compulsory retirement date of the 3rd of September 2022.

The Law

The Unfair Dismissals Act provides that a dismissal can occur where an employee resigns.

Thiis is outlined in section 1 of the act which defines dismissal as to include: the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,

There are a number of persons excluded from the protections of that act. These are provided for under Section 2. Namely Section 2—(1)b Except in so far as any provision of this Act otherwise provides: This Act shall not apply in relation to any of the following persons: (b) an employee who is dismissed and who, on or before the date of his dismissal, had reached the normal retiring age for employees of the same employer in similar employment or who on that date had not attained the age of 16 years.

As outlined in section 1, constructive dismissal is not a separate cause of action under the Unfair Dismissals Act, dismissal is defined so as to include constructive dismissal and as such is encompassed by the above exclusion. However, the Complainant alleges that he was constructively dismissed on the 21st of June 2022. This was several months before he reached his 60th birthday which had at that stage become the normal retiring age for retained firefighters working for the Respondent. As such the exclusion does not apply to him.

Conclusions

I agree with the Complainant on the question of his terms of employment. The Expert Group Agreement clearly provided a carve-out for people in his situation and allowed for their pre-existing contractual positions to remain in place. The Judgement of the High Court in Reilly supports that position. I understand that the Respondent wants to refer to contracts the Complainant subsequently signed however as the Complainant’s representative pointed out, the Complainant’s final contract essentially had no operative retirement clause. It strictly prohibited service past 58 but was issued to the Complainant when he was 59. I am satisfied that the terms of Complainant’s 1988 contract applied as confirmed by the 2003 agreement.

The definition of constructive dismissal outlined above has been interpreted as putting the burden on the employee to establish not only was their decision to resign reasonable but that it was due to the unreasonable conduct of the employer or due to the employer breaching the contract of employment in some fundamental way.

Or as the UK Court of Appeal put it in the seminal case of Western Excavating (ECC) Ltd v Sharp [1978] ICR 221:

“the employer must act reasonably in his treatment of his employees. If he conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer,the employee is justified in leaving. He can go, with or without giving notice, and claim compensation for unfair dismissal” or in relation to the contract ground, where the employer “is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.”

The Complainant’s position is understandable. He was facing unemployment at the age of 60 while he still had the financial obligations associated with someone of his age and had no enhanced or early pension to avail of. He had to secure alternative employment and when a different job with the Respondent became available, he felt he had to take it. He engaged extensively with management to try to obtain further contract extensions but to no avail. As the action of resigning to avoid unemployment was obviously reasonable, I have to consider whether the decision he was reacting to, which was to dismiss or not extend the Complainant’s employment, was unreasonable.

The Complainant points to a number of reasons why it was apparently unreasonable. He was willing and happy to undergo whatever medical or fitness tests were required in order to satisfy the Respondent. He had fallen between two stools in regard to the various pension entitlements and was the first person with his particular set of benefits (or lack thereof) to seek to work past 60. He also points to his 1988 contract which appeared to give the Employer discretion to allow him to work to 65.

Normally compulsory retirement is not considered through the lens of this act because of the exclusions identified previously. It only arises in this case because the Complainant considered himself constructively dismissed in advance of his compulsory retirement. Retirement is not provided for as a ground justifying dismissal outlined in Section 6 (4) but that has to be understood in the context of the exclusion outlined in Section 2.1(b).

In being faithful to the act, I believe I ought to recognise that it is deliberately drafted in such a way as to not provide an avenue for a person to challenge their retirement once it happened on or after their normal retirement age. The Complainant by resigning and claiming constructive dismissal has gotten ahead of that date has around that exclusion and as such I cannot apply it. However, I can recognise its presence in determining, in the context of this act, whether the Respondent’s decision to compulsorily retire the Complainant was unreasonable.   

I also believe I should be informed by the case law associated with determining the reasonableness of a decision to dismiss, while recognising that the question before me is not the same as whether the decision to terminate the Complainant in September 2022 would have been in compliance with the Unfair Dismissals Act. As outlined in British Leyland v Swift and endorsed in this jurisdiction in Bank of Ireland v Reilly, the role of the WRC is not to take over the role of the Respondent but to determine whether a reasonable employer might have done the same as them. An element of discretion is given to the Respondent in this approach by recognising that a band of reasonableness exists within which one employer might reasonably decide to dismiss but another might reasonably decide not to.

In the circumstances, the Respondent was applying a well-established retirement age. The Complainant’s case is that because he retained the terms of the ’88 contract that the Chief Fire Officer had the discretion to choose to extend his working life further. His own evidence was that the Chief Fire Officer didn’t agree she had discretion due to the industrial agreements in place but if she did, she would not facilitate sub-officers working until 65.

In the context of the wider working environment and sector that the parties operated in, I am satisfied that the Respondent decision, to retire the Complainant in September 2022, was one which other reasonable employers might have made and one which did not breach any fundamental clause in his contract of employment.

As such I cannot determine that the decision of the Complainant to resign in anticipation of that retirement was constructive dismissal.

I find that the complaint is not well founded.