Rodgers v Irish Transport and General Workers' Union

JurisdictionIreland
CourtHigh Court
Judgment Date15 March 1978
Neutral Citation1978 WJSC-HC 922
Date15 March 1978
Docket Number1976/5632 P

1978 WJSC-HC 922

THE HIGH COURT

1976/5632 P
RODGERS v. IRISH TRANSPORT AND GENERAL WORKERS UNION

BETWEEN

WILLIAM RODGERS
Plaintiff

and

IRISH TRANSPORT AND GENERAL WORKERS UNION, JAMES DOHERTY, J. CREGAN, RICHARD O'MAHONEY, JOHN McCARTHY, JOHN GALVIN AND PATRICK McSWEENEY
Defendants
1

JUDGMENT Delivered 15th March 1978 (the President)

2

This is an action brought by the plaintiff against the defendants claiming in the first instance a declaration that a decision of the Irish Transport and General Workers Union Dockers' Section Number 5 Branch Branch Number 2515 Cork to the effect that members of the Dockers' Section on attaining 65 years of age be compulsorily retired is invalid, claiming ancillary injunctions in effect restraining the defendants from putting the said resolution into effect, and claiming damages for breach of contract, for the inducing of a breach of contract for conspiracy, and for infringement of constitutional rights.

3

The plaintiff who reached the age of 65 years in July 1976 has been, for a total of approximately 34 years, a casual docker employed at the Cork docks. He is and has been for a number of years a member of the defendant union. The other defendants are all members of the defendant union, James Doherty, John McCarthy, John Galvin and Patrick McSweeney being members of the Dockers' Section of which the plaintiff is also a member and J. Creegan and Richard O'Mahoney being members and officials of the Cork Number 5 Branch in which Branch the Dockers' Section is included. The defendant union is organised upon the basis of branches and within branches sections applicable to particular employment. The Dockers' Section of the Cork Number 5 Branch is the section of the union concerned with work on the Cork docks.

4

The action arises out of the following facts as I find them to be on the evidence before me. In or about the year 1974 the defendant union became concerned with the position of dockers at the Cork docks who were reaching an age at which they could no longer carry out their full work and with the general opportunities for employment at the docks including the effects of some recession with regard to the quantity of work available. As a result they negotigated the introduction of a pension scheme providing for optional retirement by dockers at the age of 65 years or over the general nature of the scheme being the payment of a lump sum of £500 and a payment of £10 per week by way of pension. Further negotiations with representatives of the employers, namely the Federated Union of Employers, continued with regard to this pension scheme in the years 1975 and 1976 and during that period an attempt was made by the defendant union to secure agreement to retirement prior to the age of 65 for men who might be in ill health or who might wish to retire, but this was rejected. Prior to June 1976 there was considerable discussion, I am satisfied on the evidence, between members of the Dockers' Section and officials of that Section concerning the desirability of introducing a compulsory retirement pension scheme obliging casual dockers to retire on attaining the age of 65 years and providing for the payment of a pension to them. There is a dispute on the evidence as to whether the plaintiff was aware of this discussion or of these proposals in general discussion amongst his colleagues at the docks. This issue is not vital to the decisions which I have reached in this case but I have come to the conclusion that it is improbable that he was wholly unaware of the existence of a point of view amongst his colleagues that such a scheme would be desirable but also I am not satisfied that he was aware of the extent to which it was being discussed or as to the concrete nature of the proposals which were apparently in the minds of his colleagues in the Dockers' Section at that time. In 1976 the plaintiff was regularly employed by Mr. Denis Cullinane as a casual foreman docker. Prior to the death of Mr. Cullinane's father in 1973 the plaintiff had been employed as a casual foreman docker by the late Mr. Cullinane senior from 1967. After that time Mr. Cullinane carried on both the firm of stevedores which had previously been run by his father and also a separate firm which he, himself, ran. In effect, he continued the employment of the plaintiff as a casual docker, this meaning that whilst there was not a fixed and regular contract of employment when a boat came to be unloaded or loaded which was being attended to by the stevedoring firm formerly carried on by the late Mr. Cullinane senior the plaintiff was the man employed as the foreman on that work. Although casual the work was, in effect, relatively regular and in the year prior to the events with which I am concerned the plaintiff earned something over £2,200. The usual procedure for the holding of meetings of the Dockers' Section of the defendant union was that they were held in the Connolly Hall, Cork and that notice of them was posted on notice boards in the docks where the dockers, who were members of the union, would ordinarly be gathering for the purpose of having work allotted to them each day. It was not the custom of the union to notify members of the Section of the holding of a meeting by any form of letter or postcard nor was it the custom to circulate any form of agenda. On some occassions I am satisfied the notice of the meeting contained a statement of some item which was to be discussed, the purpose largely being to secure as good an attendance at the Section meeting as possible, on some occassions no notice of the item to be discussed or intended to be discussed was put on the notice.

5

For some days prior to the 25th June 1976 a notice was posted in the usual place of a general meeting of the Docks Section to be held on Friday 25th June at 8 a.m. and at the bottom of that notice were the words "Re vote on nat. wage ag.". This obviously was meant to convey and did convey to those who read it that the subject to be discussed was a vote on the national wage agreement which was at that time being considered by various trade unions.

6

The plaintiff saw that notice and apparently intended to attend the meeting and did so but arrived late and after the important or significant business had been transacted.

7

Without, I am satisfied, the knowledge of the plaintiff the Docks Section Committee had, prior to the holding of this meeting, decided to recommend to the Docks Section **???query?????? introduction of a compulsory retirement and pension scheme at the age of 65. The Docks Section had a nominal membership of approximately 300 and a general meeting which attracted an attendance of up to 50% of that number would be considered a well attended meeting. I am satisfied that the defendants who were concerned as members of the Docks Section Committee with the making of the proposal for compulsory retirement bona fide believed that a general meeting being held on the question of a vote on the national wage agreement was a meeting which was likely to be well attended.

8

During the course of that meeting and at a time when the plaintiff was not present it was proposed from the floor of the meeting that a resolution should be passed resolving that a system or scheme of compulsory retirement at 65 with a pension should be introduced. Members present spoke to the resolution a number speaking in favour of it and two only speaking against it, it was then put to the meeting for a vote by a show of hands and was apparently passed by a very substantial majority indeed only two or three voting against it.

9

After the conclusion of that part of the business certainly at the meeting the plaintiff arrived and was informed of the decision that had been reached. He was subsequently one of those since he was about to reach the age of 65 years who were communicated with by the officials of the union by postcard and asked to submit a Birth Certificate. This was intended as and understood by him as an indication that he would be compulsorily retired on his 65th birthday. He met the defendant, John McCarthy, informed him that he would not give in his Birth Certificate and on being asked as to whether he was objecting he confirmed that he was. I am satisfied that Mr. McCarthy informed him that he would bring the fact of his opposition to the notice of the Committee of the Docks Section. A meeting then took place in the month of July between the Federated Union of Employers representing the stevedores or employers at the docks and the Irish Transport and General Workers Union representing the dockers. The Federated Union of Employers were requested by the defendant union to enforce, as a body, a compulsory retirement age of 65 for their members. The attitude of the employers at that meeting apparently was that this was a matter internally for arrangement by the union and that the employers would not and could not make a decision on a compulsory age limit. The defendant, Richard O'Mahoney, at that meeting apparently informed inter alia Mr. Cullinane the regular employer of the plaintiff that from the end of July 1976 the dockers would not accept employment from his foreman, the plaintiff. The evidence would appear to indicate that the defendants, Mr. Galvin, Mr. McCarthy and Mr. Doherty, were also present on that occassion at that meeting.

10

On the 26th July 1976 the Solicitors for the plaintiff wrote to the defendant, Richard O'Mahoney, in his capacity as Secretary of the Cork Number 5 Branch of the defendant union protesting against the decision of the Docks Section; against the subsequent requests by officials of the union for the Birth Certificate of the plaintiff and the indications to him that he must compulsorily retire and against the communications made to the employer of the plaintiff and the warning that after the end of the month of July 1976 the plaintiff, in effect, was not to be...

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