UDD2631

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No.: ADJ-00043217 (CA-00053675-002)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 25 October 2024 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 5 August 2026.

The following is the Decision of the Court.

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DECISION:

1. Background to the Appeal

This is an appeal by Mr Paul O’Dwyer (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00043217, dated 19 September 2024) under the Unfair Dismissals Act 1977 (‘the Act’). Notice of Appeal was received in the Court on 25 October 2024. The Court heard the appeal in Dublin on 5 August 2026.

2. The Complaint

The Complainant alleges that he was constructively dismissed within the meaning of the Act when he resigned from his employment as a Substation Officer with Kildare County Council (‘the Respondent’) on 21 June 2022 in response to what he characterises as the Respondent’s unilateral breach of a fundamental term of his contract.

3. Factual Background

The material facts are not in dispute and can be succinctly summarised as follows. The Complainant commenced employment as a part-time Retained Firefighter with the Respondent in 1988. He was promoted to Substation Officer in 2009. At all times, he was based at Naas Firestation.

At the commencement of his employment, the Complainant was provided with a written contract of employment. Paragraph 2 of the section of the contract entitled ‘Conditions of Service’ provides:

“He must be not less than 18 years or more than 40 on recruitment and will retire on reaching the age of 55. Station Officers and Sub Officers may continue until 65 at the discretion of the Chief Fire Officer”.

Having reached the age of 55 in September 2017, the Complainant was offered and accepted a one-year extension to his employment by way of a fixed-term contract to cover the period 4 September 2017 to 3 September 2018. He received similar subsequent one-year fixed term contracts that commenced on 4 September 2018 and 4 September 2019 respectively. These were followed by: a short fixed-term contract that covered the period 1 December 2020 to 28 February 2021; a one-year contract that covered the period 1 March 2021 to 28 February 2022 and a final fixed-term contract to cover the period 1 March 2022 and 4 September 2022. The Complainant’s 60th birthday fell on 4 September 2022.

The Complainant engaged with Management in the Respondent’s fire service and with the Human Resources Department from 2020 onwards in relation to the continuation of his employment as a Substation Officer. However, at all times it was communicated to him that his employment in that capacity would not be extended beyond his 60th birthday. The Complainant applied for approximately nine alternative positions with the Respondent. He was successful in obtaining a position with the Respondent’s library service. He resigned as Substation Officer with effect from 21 June 2022 to take up that new position in the library service commencing on 26 June 2022.

4. The Complainant’s Evidence

The Complainant gave an account of the history of his employment with the Respondent. He told the Court that his understanding was that his contract of employment, issued in 1988, provided that his employment with the Respondent’s fire service could be extended beyond age 55 up until his 65th birthday at the discretion of the Chief

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Fire Officer. He expressly stated that the wording of his contract did not guarantee him employment up until the age of 65 but that he had been assured by the then-Human Resources Manager when he had accepted the position of Retained Firefighter in 1988 that, were he promoted to Substation Officer, he could stay in post until reaching the age of 65.

The Complainant then gave evidence in relation to the successive fixed-term contracts he received and accepted between 2017 and 2022 and his ongoing attempts to secure his employment beyond the age of 60. He said that when it became apparent to him that those attempts would not bear fruit, he began applying for alternative roles with the Respondent. He said that he was ultimately successful in securing an offer of employment in the Respondent’s library service and that he resigned in June 2022, prior to the expiry of his current fixed term contract, to take up that position. He said that as a Substation Officer he was in receipt of an annual salary of approximately €65,000.00. He is on a lower salary of approximately €37,000.00 in his new role.

The Complainant gave evidence that he was aware of and understood the findings set out in the 2003 Report of the Expert Group appointed to review the retirement age of firefighting personnel and the subsequent Circulars that followed from it.

Under cross-examination, the Respondent’s representative put it to the Complainant that he had retired at age 55 as per his contract and that he been given successive fixed-term contracts thereafter that continued until his 60th birthday, in accordance with the relevant Local Government Circular. The Complainant did not accept that he had been retired at age 55.

5. Discussion and Decision

It is apparent that the Complainant’s case rests entirely on the construction of previously quoted paragraph in his 1988 contract of employment. It will be recalled that the first sentence of that paragraph reads in material part: “He … will retire on reaching the age of 55.” These words are unambiguous and must, therefore, be given their literal meaning i.e. the employee to whom the contract applies is mandatorily required to retire on reaching the age of 55.

The second sentence of the contractual paragraph states: “Station Officers and Sub Officers may continue until 65 at the discretion of the Chief Fire Officer.” Again, it appears to the Court that this sentence is unambiguous in its meaning and intent and should likewise be given a literal interpretation to the effect that the Chief Fire Officer is empowered thereunder to extend the employment of a Station Officer or Sub Officer up to a maximum age of 65. What the second sentence does not do is modify the mandatory retirement age of 55 specified in the sentence that goes before it. In other words, the paragraph read as a whole, provides for a mandatory retirement age of 55 for all firefighting staff but provides that two named categories of post holders could have their employment continued beyond their mandatory retirement age, but up to a limit of 65, at the discretion of the Chief Fire Officer.

This interpretation of the contractual provision in question, is, in the Court’s view, entirely consistent with what occurred in the Complainant’s case when one takes into account the impact of the 2003 Report of the Expert Group. The Complainant himself quoted the final paragraph from the Report which provides:

“These terms apply to all Retained Firefighters in all categories in the Retained Firefighters Service in all Local Authorities with the exception of those Retained Firefighters whose written contracts of employment specify a retirement age beyond age 55.”

The fallacy in the Complainant’s submission to the Court, however, lies in his belief that his 1988 contract of employment provides for a retirement age of 65. For the reasons set out above, the Court has already found that not to be the case. The mandatory retirement age provided for in the Complainant’s contract is 55. He was retired in

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accordance with that provision on reaching his 55th birthday and he, thereafter, received a number of fixed-term contracts of employment that extended his service to no later than his 60th birthday, in accordance with the relevant Circular then in place. The process that was applied to the Complainant is entirely analogous to that which applies when any employee is retired in accordance with a mandatory retirement provision in their contract of employment and they are offered and accept an extension of employment by way of one or more fixed-term contracts. The acceptance of such fixed-term contracts does not negate the mandatory retirement provision in their original contract of employment.

On the basis of the foregoing, the Court can only conclude that the breach of contract as alleged by the Complainant did not occur because the Respondent acted entirely consistently with the relevant provision of the Complainant’s contract at all times. It follows, therefore, that the Complainant has not made out a case of constructive dismissal within the meaning of the Act. Finally, the Court notes that its finding in this regard is entirely consistent with the following aspects of the Complainant’s own evidence: firstly, that he resigned to take up an alternative position offered to him by the Respondent and secondly, that he accepted that the 1988 contract did not guarantee him employment until the age of 65.

The appeal fails and the decision of the Adjudication Officer is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
AM	______________________
06/08/2026	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Áine Maunsell, Court Secretary.