DONEGAL County COUNCIL v McLOUGHLIN, McGONIGAL & BREDIN

• Jurisdiction: Ireland
• Judge: Mr. Justice Fergus M. Flood
• Judgment Date: 23 March 1993
• Neutral Citation: 1998 WJSC-HC 6451
• Court: High Court
• Date: 23 March 1993

1998 WJSC-HC 6451

THE HIGH COURT

NORTHERN CIRCUIT

COUNTY OF DONEGAL

DONEGAL CO. COUNCIL v. McLOUGHLIN,McGONIGAL & BREDIN

UNFAIR DISMISSALS ACT 1977 SECTION 10 (4)

BETWEEN

COUNTY COUNCIL OF THE COUNTY OF DONEGAL

APPLICANT/RESPONDENT

AND

NEIL PORTER MICHAEL MCLAUGHLIN PATRICK McGONIGAL AND JACK BREDIN

APPELLANT/RESPONDENTS

Citations:

UNFAIR DISMISSALS ACT 1977 S10(4)

LIMERICK HEALTH AUTHORITY V RYAN 1969 IR 194

UNFAIR DISMISSALS ACT 1977 S61

HEENEY V DUBLIN CORPORATION UNREP BARRON 16.5.91 1991/9/2060

SAFETY HEALTH & WELFARE ACT 1989 S6

UNFAIR DISMISSALS ACT 1977 S7

Words & Phrases:

CEF

Subject Headings:

*

1 Judgment of Mr. Justice Fergus M. Flood delivered this 23rd day of March 1993 at Letterkenny Courthouse.

2 All four Respondents were employed by Donegal County Council as part-time retained firemen. They entered the service of Donegal County Council at dates varying from January 1st, 1960 to February 1st, 1977 and remained in the service of the County Council until they were dismissed, in one case on September 16th, 1991 and in the remainder until October 12th, 1991, on which respective dates they had each attained the age of 55.

3 The Respondents appealed the said dismissals, as wrongful dismissals, under the terms of the Unfair Dismissals. Act, 1977–1991 to the Employment Appeals Tribunal. That Tribunal held with the Appellant/Respondents” contentions. The Tribunal's decision was appealed by the County Council to the Circuit Court, which on July 16th, 1992 reversed the Employment Appeals Tribunal's decision. The matter comes before this Court by way of appeal by the Appellant/Respondents from the decision of the learned Circuit Court Judge.

4 Donegal County Council took a preliminary point relating to the jurisdiction of this Court (and of the Employment Appeals Tribunal and the Circuit Court) to hear and determine this matter. The basis of the Council's point was in that the Appellant/Respondents had not, under their contract of employment, been in computable service for the requisite period under the Statute; in that the Appellant/Respondents were not required to work a minimum of eight hours in any week in the course of their employment. I am satisfied that the contract of employment committed them to work as fire brigade men if and when the occasion arose be that daily or otherwise. They had an obligation to be available for work, eight hours or more, during the term of their employment if and when this was demanded. They were committed by their terms of employment to retain, if the necessity should arise daily, for seven days per week. In my opinion there is no foundation in this point and in this regard I would rely upon the authority of the judgment of Mr. Justice Kenny in Limerick Health Authority -v- Anna Ryanreported in the 1969 Irish Reports at page 194.

5 The evidence for Donegal County Council and for the Appellant/Respondents was, in one central fact, in agreement namely that these Appellants joined in 1960 and in subsequent years at a time when there was no formal written contract in use and no reference to a specific date of retirement. The Appellant/Respondents contend that it was an accepted fact by Senior Council Officials, that if they were capable of performing their duties and did in fact perform their duties, they were entitled to look forward to service with the Council as fire brigade men, up to the age of 60. This, was not, as I say, seriously contended and I find it to be a fact.

6 In the course of the 1970's the policy of the County Council and other fire authorities began to change in favour of compulsory retirement at age 55 for fire men. Fire men engaged in the 1980's have this terms incorporated in a written contract. The County Councils say that this was because the task of fire men had become more hazardous and stressful. This required men who were more agile and flexible. In December, 1985 a Directive issued from the Department of the Environment recommending

7 (a) Introduction of retirement at age 55.

8 (b) Compulsory annual medical examination on a uniform basis for all operational personnel.

9 The Circular contemplated a transitional period of two years from January 1st, 1986. It is the implementation of this Circular which in fact has given rise to the dismissals of the Appellant/Respondents.

10 I am satisfied:-

11 (1) That the Respondents and each of them are employed on the basis of an expectation that, all things being equal, they would continue in the fire brigade service up to age 60.

12 (2) That nothing has occurred in the intervening-years which could be said to have altered that state of affairs by...