Reilly v Drogheda Borough Council

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 19 November 2008
• Neutral Citation: [2008] IEHC 357
• Court: High Court
• Docket Number: [2008 No. 1906 P]
• Date: 19 November 2008

[2008] IEHC 357

THE HIGH COURT

[No. 1906P/2008]

Reilly v Drogheda Borough Council

BETWEEN

PATRICK REILLY

PLAINTIFF

AND

DROGHEDA BOROUGH COUNCIL

DEFENDANT

FIRE BRIGADES ACT 1940

DONEGAL CO COUNCIL v PORTER UNREP HIGH FLOOD 23.3.1993 1998/17/6451

Ó CEARBHAILL & ORS v BORD TELECOM ÉIREANN 1994 ELR 54

GOULDING v BOLGER 1977 IR 211

INDUSTRIAL RELATIONS ACT 1946 S30(1)

INDUSTRIAL RELATIONS ACT 1946 S30

MINIMUM NOTICE & TERMS OF EMPLOYMENT ACT 1973 S9

LIMERICK HEALTH AUTHORITY v RYAN 1969 IR 194

MINIMUM NOTICE & TERMS OF EMPLOYMENT ACT 1973 S9(1)

MINIMUM NOTICE & TERMS OF EMPLOYMENT ACT 1973 S9(1)(e)

MINIMUM NOTICE & TERMS OF EMPLOYMENT ACT 1973 S9(1)(e)(iii)

MINIMUM NOTICE & TERMS OF EMPLOYMENT ACT 1973 S9(3)

MINIMUM NOTICE & TERMS OF EMPLOYMENT ACT 1973 S10

TERMS OF EMPLOYMENT (INFORMATION) ACT 1994 S13

EEC DIR 91/533/EEC

TERMS OF EMPLOYMENT (INFORMATION) ACT 1994 S6

TERMS OF EMPLOYMENT (INFORMATION) ACT 1994 S3

TERMS OF EMPLOYMENT (INFORMATION) ACT 1994 S5

EMPLOYMENT

Contract of service

Industrial relations - Collective agreement - Terms - Retirement age - Whether plaintiff bound by collective agreement to reduce retirement age - Whether exemption in collective agreement with respect to retained firefighters whose written contracts of employment specified retirement age beyond 55 applied to plaintiff - Goulding Chemicals v Bolger [1977] IR 211 applied; O Cearbhaill v Bord Telecom Éireann [1994] ELR 54 distinguished - Minimum Notice and Terms of Employment Act 1973 (No 4), ss 9 and 10 - Terms of Employment (Information) Act 1994 (No 5), ss 3, 6 and 13 - Relief granted (2008/1906P - Laffoy J - 19/11/2008) [2008] IEHC 357

Reilly v Drogheda Borough Council

Facts: the plaintiff had been employed by the defendant as a fire-fighter since 1980. He had not been provided with a written contract of employment but at that time the retirement age for fire-fighters was 65. Subsequently, a collective agreement had been entered into between trade unions representing fire-fighters and their employers. The terms of that agreement included one whereby the retirement age would be lowered to 58. The defendant purported to retire the plaintiff on his 58th birthday on the grounds, inter alia, that the prevailing retirement age when the plaintiff was hired was capable of being changed and had been changed or that retirement age was not a condition of service. The plaintiff sought a declaration that he was entitled to retire at 65 and an injunction restraining the defendant from retiring him before that age.

Held by Ms Justice Laffoy in granting the reliefs sought that the prevailing retirement age when the plaintiff joined the service became a term of his service and could not be varied unilaterally by the defendant. No evidence had been tendered that, under the rules of the plaintiff's trade union, he could be bound by the collective agreement nor that he acquiesced in it. Accordingly, he was not bound by it and it was not effective to vary the terms of his contract of employment that he should retire at 65.

Reporter: P.C.

1 Miss Justice Laffoy delivered on the 19th day of November, 2008 .

The claim

2 In these proceedings the primary reliefs sought by the plaintiff are:-

3 (1) a declaration that pursuant to a contract of employment made between him and the defendant in or about the month of October, 1980 his retirement age is 65; and

4 (2) an injunction restraining the defendant from retiring the plaintiff at any time earlier than his 65 ^th birthday.

5 The contract to which the proceedings relate is a contract under which in October, 1980 the plaintiff was appointed as a retained firefighter with Drogheda Fire Brigade, which was administered by the defendant. That was a part-time position. At the time the plaintiff was already in the employment of the defendant on a permanent pensionable basis as a general operative. Subsequently, in 1985, he was appointed to the full-time post of driver on a permanent pensionable basis with the defendant and he continues in that employment. In due course, when he retires from his full-time permanent position, he will be paid a pension.

6 The plaintiff was appointed to the post of retained firefighter following an interview. By letter dated 21 ^st October, 1980 he was informed of his appointment in accordance with conditions of employment and a list of duties attached to the letter, subject to completing a training course satisfactorily and to a probationary period of one year, each of which conditions he fulfilled. The conditions of employment stipulated that the post was part-time. His remuneration would comprise an annual retainer together with "fire fees", that is to say, fees paid when he was called for duty as a firefighter.

7 At the time of the plaintiff's appointment the retirement age for retained firefighters in the employment of the defendant was 65 years of age. It was the plaintiffs evidence that at the interview, in the context of advising him that the post was non-pensionable, he was informed by a person conducting the interview, whom I assume was the chairman of the interview panel, that the appointment was to age 65.

8 These proceedings arise from the fact that when the plaintiff reached the age of 58 years on 9 ^th March, 2008 the defendant regarded him as having reached his retirement age and his employment as a retained firefighter having terminated. To understand why the defendant considered that the plaintiff was obliged to retire when he attained the age of 58 years it is necessary to consider the history of industrial relations over almost two decades, between 1985 and 2003, between the trade unions which represented the retained firefighters, on the one hand, and the body for the time being representing the employers of retained firemen, on the other hand. That body was formerly known as the Local Government Staff Negotiations Board and is now known as the Local Government Management Services Board (the Board), which is made up of representatives of the local authorities which act as fire authorities under the Fire Brigades Act 1940 (the Act of 1940) throughout the State, and the Department of the Environment.

Industrial Relations History

9 The early history of retained part-time firefighters is recorded in Labour Court Recommendation No. 9605 of 12 ^th March, 1985 (the 1985 Recommendation), which was made in a dispute between the Board and the trade unions. Retained part-time fire brigades had been established by local authorities around the country in response to the Act of 1940. By the mid-1960s, when the workers recruited in the 1940s started to retire from the service, a scheme of ex-gratia payments had been introduced under which a retained firefighter would be paid a gratuity on his retirement, which was based on a multiple of the retaining fee payable to him for his last year of service. The claim before the Labour Court in 1985 was made by the trade unions on behalf of approximately 2, 000 part-time firemen for an increase in the ex-gratia payment. What the Labour Court recommended was that an offer made by the Board be accepted. That offer, broadly speaking, involved two elements: the phased introduction of compulsory retirement at 55 years over a period of two years from 1 ^st January, 1984; and the introduction of a revised ex-gratia payments scheme, which, inter alia, increased the maximum gratuity to a sum equal to two and a half times the retainer fee for the last year of service from twice the retainer fee. The offer was rejected by the trade unions. Nonetheless, the evidence shows that the compulsory retirement at 55 years of age was introduced in certain local authority areas, apparently on foot of a Circular from the Department of the Environment to local authorities in December 1985 ( per judgment of Flood J. in Donegal County Council v. Porter and Ors. referred to later). That Circular was not put in evidence. In any event, the retirement age of 55 was not introduced by the defendant.

10 The next stage in the process was a further claim by the trade unions on behalf of the part-time retained firefighters, which was the subject of Labour Court Recommendation No. 12292 dated 23 ^rd February, 1989 (the 1989 Recommendation). The Labour Court recommended that the maximum retirement gratuity be increased to three times the inclusive annual allowance with proportionate increase payable down the existing range of entitlements. The recommendation was accepted by the Board and the trade unions. As a result, the Department of the Environment issued Circular Letter EL5/89 dated 12 ^th June, 1989, in which it was stated that each fire authority might, if it so desired, introduce a revised scheme of retirement gratuities with effect from 1 ^st March, 1989, in accordance with the recommendation. The scheme provided that all retained fire service personnel should retire on reaching 55 years of age. Once again, the defendant did not introduce a retirement age of 55 years.

11 The evidence is that, following the 1985 Recommendation, 70% to 75% of the local authorities introduced a compulsory retirement age of 55 and that the percentage was increased in consequence of the 1989 Recommendation. That led to the next claim by the trade unions on behalf of the retained firefighters, which was a claim for an increase in the retirement age and also an increase in the retirement annuity. That claim was the subject of Labour Court Recommendation No. 17223 dated 12 ^thAugust, 2002 (the 2002 Recommendation) in which the Labour Court recommended that the Board and the trade unions establish an expert working group to carry out a review of the then current retirement age and that consideration of the retirement gratuity claim be deferred until the expert working group had reported....