The claimant commenced employment as a security officer four months before he attained the age of 61. He signed a contract of employment which had no mandatory retirement age. The respondent stated that the company originally had a retirement age of 65 which had been increased to 66 but that they had no retirement policy.
The claimant, with the knowledge of the respondent, secured the necessary licence to continue to work as a security guard beyond the age of 65. Around that time his hours of work were being reduced and, in resisting this move, the claimant applied to the Labour Relations Commission. In early 2008 he sustained injury during the course of his employment and required medical treatment. The respondent claimed that it was unaware of the claimant’s age until this time. The respondent purported to force the claimant’s retirement due to what was argued to be a mandatory retirement age of 66. Following an admission of some shortcomings in its procedure, the respondent offered the claimant an 11 month fixed-term contract with reduced hours and reduced pay conditional on him withdrawing his complaint to the Labour Relations Commission. The claimant resigned and claimed constructive dismissal.
The Tribunal stated that in a claim of constructive dismissal under Section 1 of the Unfair Dismissals Acts 1977 - 2007, a very high burden of proof lies with the claimant. The legal test to be applied is “an and or test”. In order to establish whether the termination was a reasonable one, the Tribunal must firstly look at the contract of employment to establish a significant breach going to the root of the contract. If the Tribunal is not satisfied that there has been a significant breach of contract, it can examine the conduct of both parties; and look at the circumstances surrounding the termination.
The Tribunal held that the compulsory imposition of a fixed-term contract on the claimant after six years’ continuous employment had the effect of seriously diminishing the claimant’s legal rights and was a significant breach going to the root of the contract. The Tribunal found in favour of the claimant and awarded him the sum of €25,000.00 under the Unfair Dismissals Acts, 1977 to 2007.