Court allows pension claim for compulsory overtime, rejecting estoppel and statute of limitations defenses.

APPROVED [2026] IEHC 4

THE HIGH COURT

2020 6775 P

BETWEEN

PADRAIG BROWNE

PLAINTIFF

AND

MAYO COUNTY COUNCIL

PADRAIG WALSH

DEFENDANTS

JUDGMENT of Mr. Justice Garrett Simons delivered on 12 January 2026

INTRODUCTION

1. The principal issue to be determined in these proceedings is whether the overtime payments made to a local authority employee should be reckoned for the purpose of calculating his pension entitlements. The determination of this issue turns, largely, on the proper interpretation of a Ministerial Circular and necessitates a consideration of matters such as whether the overtime was compulsory, regular and recurring.

2. The employer, i.e. the local authority, contends that the employee is precluded from pursuing his claim for two reasons. First, it is said that the employee is NO REDACTION REQUIRED estopped from re-agitating the question of his pension entitlements by dint of his having previously made a complaint to the pensions ombudsman. Put otherwise, it is said that the question is res judicata. Second, it is said that any claim is statute-barred in circumstances where the local authority had communicated a

decision rejecting the employee’s claim more than six years prior to the commencement of the present proceedings.

3. More broadly, the local authority contends that the overtime work does not fulfil the criteria in the relevant Ministerial Circular (Circular Letter S.12/91 of

11 December 1991).

LEGACY LEGISLATION

4. It should be explained, from the outset, that the resolution of these proceedings requires consideration of what might be described as “legacy” legislation. This is because the principal events occurred some fifteen to twenty years ago. Much of the applicable legislation has been amended since then. In particular, the procedure governing complaints in relation to pensions is now to be found under the Financial Services and Pensions Ombudsman Act 2017. The former office of the pensions ombudsman has been dissolved and a new office established, namely that of the financial services and pensions ombudsman.

5. For the purpose of this judgment, however, it will be necessary to consider the former legislation, namely, Part XI of the Pensions Act 1990 (as inserted by the Pensions (Amendment) Act 2002). Similarly, it will be necessary to consider the employment law requirements applicable at the time the contract was entered into, i.e. March 2004.

6. All references in this judgment to “the pensions ombudsman” are to the then holder of that office. The judgment has nothing to say in relation to events involving the holder of the office of financial services and pensions ombudsman.

PENSION SCHEME

7. It may be of assistance to the reader, in establishing the context for the discussion which follows, to pause here in order to outline the operative pension scheme. The pension scheme is the Local Government (Superannuation) (Consolidation) Scheme 1998. The provisions of this scheme are set out, principally, in S.I. No. 455 of 1998. The pension scheme has been amended by S.I. No. 288 of 2002 and S.I. No. 178 of 2004.

8. The pension scheme provides for the payment of a lump sum on retirement and for the payment of an allowance. Each of these is calculated by reference to the “pensionable remuneration” of the former employee. “Pensionable remuneration” is defined by reference to the wage and emoluments of the former employee. The default position is that neither “wages” nor “emoluments” shall include “payments for overtime”. This is subject to the following proviso.

9. Regulation 105(2) of the pension scheme provides, in relevant part, that a local authority may, subject to such conditions as may be specified by the Minister, decide that payments of a specified kind shall be part of the “wages” of a particular employee, of employees of a particular class, or of every employee.

10. The parties are all agreed that the specified conditions are to be found in Circular Letter S.12/91 of 11 December 1991 (“the Circular”). This is so notwithstanding that the Circular predates the promulgation of the pension scheme in its consolidated form in 1998. It should be noted that the consolidation is deemed to have come into force at an earlier date (regulation 2).

11. Having regard to the agreed approach of the parties, this judgment has been prepared on the working assumption that the Circular is applicable. The point has not been decided and remains open for argument in future proceedings res integra.

12. The specified conditions under which overtime payments may be reckonable for pension purposes are as follows:

“4. The conditions are that the work in respect of which the

overtime payments were made –

(a) was scheduled work attached to the office or

employment (i.e. the particulars of office or

conditions of employment specified that the holder

of the office or employment has to perform the

particular work on an overtime basis); where a

schedule of work is not available the local authority

should confirm –

(i) that the overtime was not optional, (i.e. that the

person in question had to work the overtime

and could not refuse to work it), and

(ii) that the overtime was part and parcel of the

employment of the person in question;

(b) was work of a regular and recurring nature (i.e. that

the particular officer or employee was required to

perform the duties during specified hours on

specified days); and

(c) was work of a kind which could only be performed

outside of, and in addition to, the normal hours of

work of the grade to which the officer or employee

belonged.

5. The Minister will not be prepared to give a direction that

payments for overtime shall be part of salary or wages for

superannuation purposes where –

(I) the overtime was occasioned by work volume or staff

shortages;

(II) the amount of overtime worked fluctuated (i.e. where

there was no regular and recurring pattern to the

overtime worked); or

(III) where the overtime work could have been performed

within normal hours.”

13. Finally, it is necessary to flag one further aspect of the pension scheme as follows. A potential dispute resolution procedure is identified under regulation 282(2) of the pension scheme (as amended in 2004). Relevantly, the local authority must notify its determination in relation to a complaint or dispute within three months. The notification must include a statement that the determination is not binding unless assented to, and a statement that the complainant should check whether the complaint or dispute is one in respect of which the pensions ombudsman has jurisdiction to investigate.

14. These provisions are highlighted now in circumstances where one of the grievances raised by the plaintiff had been that the local authority had issued determinations to him subject to these provisos. With respect, any criticism of the local authority in this connection is unwarranted and appears to overlook the notification requirements discussed above.

FACTUAL BACKGROUND

15. These proceedings concern the calculation of the pension entitlements of Mr. Padraig Browne (“the plaintiff”). The plaintiff is now 83 years of age. The plaintiff had been employed by Mayo County Council (“the local authority”) for a period of almost fifty years until his retirement on 23 February 2008.

16. The overtime hours which the plaintiff worked in each week of his final six years of employment have been compiled in a spreadsheet which has been supplied to the court (“the overtime spreadsheet”). The figures in the overtime spreadsheet are accepted by both parties as correct.

17. It is common case between the parties that the plaintiff’s pension entitlements fall to be determined by reference to his last three years of service. Neither side seeks to adjust this by reference to any other three-year period within the last ten years of service (cf. Circular 10/2008: Public Service Pension Reform: Revised method of reckoning variable pensionable allowances for pension purposes).

18. It is apparent from the overtime spreadsheet that the plaintiff worked an extremely high number of overtime hours. Excluding what appear to be annual leave weeks, the overtime hours for the last three years of employment can be analysed as follows:

Average/Mean overtime per week 24.02 hours

Standard Deviation 9.50 hours

Co-efficient of Variation (CV): 39.54%

19. There is a large measure of agreement between the parties as to the factual circumstances of the last three years of employment. Having been previously employed in a variety of roles by the local authority for a period of some fortyfive years, the plaintiff’s job description in his final years of work had been “Deputy Foreman (Machinery Yard)”. The machinery yard was located near Newport, Co. Mayo. The plaintiff explained in his evidence that this job required him to deputise for the foreman in the latter’s absence. For most of the time, however, the plaintiff’s work consisted of driving a three-axle tipper truck delivering materials from the local authority’s machinery yard to various locations at which road repairs or road construction was being carried out. He was also engaged in “topping up” stockpiles which the local authority held at six different locations.

20. The parties are agreed that the normal working week consisted of 39 hours, with overtime being paid for any hours worked in excess of that amount.

21. The local authority’s principal witness confirmed that the normal working hours were 8 a.m. to 4 p.m., Monday to Friday (Transcript, Day 2, page 105). The plaintiff’s evidence, which has not been challenged on this point, is that he personally had been directed to commence his working day at 7 a.m. It seems that this earlier start was intended to allow some lead-time for the plaintiff to deliver construction materials to the workers who would assemble at whichever location the road repairs or road construction were to be carried out on the particular day.

22. The parties are agreed that the plaintiff’s employment was regulated by a written contract (“the employment contract”). The employment contract indicates a commencement date of 10 March 2004. This document only emerged in evidence at the hearing of the present proceedings, having been produced for the first time by the local authority. The version of the employment contract provided to the court has stapled to it a document entitled “Deputy Foreman – Machinery Yard Qualifications”. There was some suggestion at the hearing that this document formed part of the employment contract. In fact, it is apparent from the wording of same that this second document is a standalone document which had been prepared in advance as part of the competition for the appointment of a deputy foreman. At all events, nothing turns on the question of whether this document is part of the employment contract as it does not address the question of overtime hours.

23. Clause 6 of the employment contract reads as follows:

“Hours of work

As required to carry out the duties of the contract.”

24. The employment contract stipulates a leave allowance of 20 working days per annum. It is further stipulated that the employee is expected to avail of the leave allowance during the current leave year and that permission is required before any portion of the leave allowance may be carried forward. It appears from the overtime spreadsheet that there are three or four weeks each year for which no overtime hours are recorded. Presumably, these were the weeks upon which the plaintiff had been absent on annual leave.

25. The plaintiff described his typical working day as follows. He drove to the machinery yard, in his own car, each morning for a 7 a.m. start. There, he collected one of the local authority’s tipper trucks. He would often drive to Roadstone (Castlebar) to load up the tipper truck with chips/stone which he would then deliver to the locus of road repairs or road construction. His work also included “topping up” the local authority’s six stockpiles which supported day‑time road maintenance. The plaintiff returned the tipper truck to the machinery yard each evening upon completion of his work and collected his own car there.

26. The plaintiff’s evidence as to his working hours can be summarised as follows. Whereas the plaintiff had a fixed starting time of 7 a.m. each weekday, his finishing time varied. The plaintiff stated that he had “to perform [his] duties until whatever time [his] work schedule finished in the evening” (Transcript, Day 2, page 11).

27. The plaintiff elaborated upon this point as follows (Transcript, Day 2, page 16 and page 52):

“Or seven o’clock in the morning and I was to continue on,

depending on what [was] designated for me in the evening,

that’s how the times differed. If I was bringing a load of

chips after straight from Roadstone to Keenagh in the

evening, it would probably take two hours. If I was bringing

it to Achill or [Tígh], it would probably take two and a half

or three hours. They had six different stockpiles and I was

to keep the stockpiles, to keep them topped up for the day

that would go to half three, seeing that it was so far from

Roadstone in Castlebar to get chips. That’s how the

difference in the evenings came in.”

[…]

“That’s exactly right, yes, that’s why the difference in the overtime in the evenings occurred. If I was bringing a load of chips to Keenagh, which was about 15 miles, and if I was bringing a load of chips to Dugort, which was 42 miles, there was a lot of difference in the time it took.”

28. In response to a direct question from counsel for the local authority, the plaintiff confirmed that, on his understanding of the Circular, there were neither specified days nor specified hours. This point was elaborated upon as follows (Transcript, Day 2, page 17): “A. It wasn’t specified because you didn’t know how long it was going to -- how could they specify?

Q. So it wasn’t work that was required to be carried out on

specified hours on specified days, isn’t that right?

A. That’s -- they couldn’t specify a finishing time, because I didn’t know what I was to do.”

29. I return to consider the implications, if any, of this exchange at paragraph 131 below.

30. The principal factual controversy between the parties was in relation to whether the performance of overtime work was compulsory. On the one side, the plaintiff contended that he had been obliged to perform overtime work as directed. The plaintiff stated that on the single occasion upon which he had refused to work overtime, he was punished for it (Transcript, Day 2, page 30):

“I never heard of anyone with Mayo County Council that

refused to work overtime, only me, I refused one evening …

and I was punished for it”

31. More specifically, the plaintiff recounted an incident, many decades earlier, where he had been transferred, for a number of weeks, from the Kiltimagh area. The plaintiff stated that this had resulted in a financial loss to him in that he lost out on a subsistence/meal allowance and on overtime during that period. The plaintiff further stated that he understood that “it would happen again” if he refused overtime when it was available, and that apart from that single incident he had always done the overtime requested of him. (Transcript, Day 2, pp. 30 and 46–47).

32. On the other side, the local authority contended that the carrying out of overtime hours had been voluntary. The principal witness on behalf of the local authority was Mr. Padraig Walsh. At the material time, Mr. Walsh had been employed by the local authority as a senior executive engineer and had responsibility for the machinery yard.

33. In his evidence, Mr. Walsh explained that the machinery yard foreman reported to him. The foreman, in turn, assigned tasks to the approximately 52 plant operators (including the plaintiff) who worked out of the machinery yard. (Transcript, Day 2, pp. 77–78).

34. Mr. Walsh explained how overtime work arose as follows (Transcript, Day 2, page 80):

“Yeah, the overtime that arose typically in our case arose

from what we called our customers which were the area

engineers in the various areas of the county who had road

work programmes to execute and they availed of our

services, which was we provided plant and various

equipment to carry out the road works. So, typically

overtime arose by a request from them from either an area

engineer or a general service supervisor based in an area who

was looking at the weather and seeing a good weather

window this week and possibly a poor weather window next

week, and would ring the yard foreman and say we would

like your crew to work late on every evening this week

because we’re not going to make the progress we would like

to make next week. The yard foreman would contact the

plant operators and discuss it with them. Then he would

arrange for that to happen, subject to getting enough plant

operators to agree to do the overtime, and it was by

agreement.”

35. The witness went on to explain that the overtime hours were arranged by the machinery yard foreman on the day, or possibly the day before, and that “there wasn’t a paper roster in advance ever”. The witness elaborated as follows (Transcript, Day 2, pp. 83–85):

“But that’s, Judge, what the foreman did. He was in constant

contact with all of the plant operators. He knew on any given

day where all of them were working, and he knew, because

he would discuss with them, who would be available and

who would do what the following day, and that was, believe

it or not, entirely verbal. The paper record was the time sheet

they filled at the end of the week but that was after the fact.

There was –

[…]

Well as soon as a request came in from one of our customers,

say, and we want additional hours done, starting next week

or starting whatever, he he’d be on the phone to his team

straight away to say look, this request has come in.”

36. The witness accepted, in answer to a question from the bench, that the failure to prepare a roster in advance made it difficult to ensure compliance with the

48 hour weekly threshold under the Organisation of Working Time Act 1997.

37. The witness stated that the working of overtime hours was by agreement (Transcript, Day 2, page 78):

“There was quite a lot of overtime. Some people, when

asked to do overtime, would have agreed, I would say on

every single instance where they were asked to do so. Other

people did some less overtime depending on, I suppose, their

family circumstances and what obligations they had outside

of work. So, the amount that individuals did varied and the

amount also varied for each individual across the year.”

38. The witness further stated that if a sufficient number of plant operators did not wish to work overtime hours, then there were a large number of private lorries available for hire by the local authority as needed.

39. The witness gave evidence in relation to the reliance on overtime hours to take advantage of forecasted periods of good weather which would facilitate road works (“weather windows”). In particular, the witness offered his opinion on whether this type of overtime work came within the criteria under the Circular. It is not necessary to address this aspect of the evidence further. This is because the plaintiff did not rely on this type of work in the course of his own evidence in respect of his final three years of employment. Rather, the plaintiff’s claim— as articulated in his evidence to the court—related to the additional hours incurred, before and after normal hours, in driving the tipper truck to and from the machinery yard and delivery destinations. The plaintiff did not contend that the overtime hours in the final three years were related to weather windows. Further and in any event, the 48 hour weekly threshold on working time excludes any overtime hours which would bring an employee over the threshold from being characterised as compulsory: see paragraphs 118 to 124 below. It follows, therefore, that the dispute in the present case turns, primarily, on the question of whether it had been compulsory for the plaintiff to perform a minimum of

9 hours of overtime work per week (excluding annual leave weeks) which would bring him to a total of 48 hours per week.

40. The local authority’s only other witness was Mr. John Condon. Mr. Condon is the former county secretary and the official who had signed off on the various pension decisions. Mr. Condon briefly addressed the 48 hour weekly threshold under the Organisation of Working Time Act 1997. The witness stated that he had first become aware of the “issues” regarding the 48 hour weekly threshold around 15 or 20 years ago. The witness agreed that there had been a “culture change” in the intervening years. The local authority had done a number of things to make themselves compliant and the witness did not believe that there was a problem (with compliance) at the present time.

41. For completeness, it should be recorded that the plaintiff called two former local authority employees to give evidence: Mr. Martin O’Malley and Mr. Seamus Neary. The former had been employed in water or sewage services; the latter had been employed as a caretaker at the Castlebar sewage treatment plant. Whereas I am grateful to both for their taking the time and trouble to travel to Dublin to give oral testimony, the content of same is not directly relevant to the issues which fall to be decided in the present judgment. This is because there was no admissible evidence before the court of the detail of their terms and conditions of employment. It is not possible, therefore, for the court to draw any inferences from their circumstances and to apply same to those of the plaintiff.

PROCEDURAL HISTORY

42. It is necessary to say something about the procedural history leading up to the institution of the present proceedings. This is because the local authority has raised a preliminary objection to the effect that the plaintiff is precluded from pursuing court proceedings by dint of his having previously referred a complaint to the pensions ombudsman. The complaint arose in the following circumstances.

43. Prior to his retirement in February 2008, the plaintiff had sought clarification from the local authority as to his pension entitlements. More specifically, the plaintiff’s trade union representative had written to the local authority on

26 November 2007 seeking confirmation that overtime payments would be factored into the overall calculation of his pension entitlements. Some six months later, on 7 May 2008, the local authority issued the first of a number of determinations on the matter. The initial determination had been to the effect that 6.5 hours of basic overtime would be included in the calculation of the plaintiff’s pension entitlements. It appears that the figure of 6.5 hours had been reached as follows: the local authority had identified the single lowest weekly figure for overtime for each of the plaintiff’s last three years of employment and then calculated the average of the three figures. For the purpose of this exercise, the local authority excluded from consideration those weeks with zero hours of overtime: presumably, these were interpreted as being annual leave weeks.

44. The covering letter of 7 May 2008 concluded by stating that the determination would not be binding upon the plaintiff unless he assented in writing to be bound by it. It was further stated that the plaintiff might have had a right to refer his complaint or dispute to the pensions ombudsman. These statements were consistent with the notification requirements imposed by regulation 282(2) of the pension scheme (as amended in 2004).

45. The plaintiff, through his trade union representative, referred a complaint to the pensions ombudsman on 30 June 2008. By letter dated 16 June 2009, the pensions ombudsman indicated that the complaint was being put on hold pending compliance by the local authority with an instruction to reassess the plaintiff’s case. The local authority issued further determinations on 24 March 2009, 23 March 2011 and 20 May 2011, respectively. The outcome was that, contrary to the original position, the local authority concluded that no overtime hours were to be reckoned for pension purposes. Put otherwise, the 6.5 hours per week were not now to be reckoned.

46. The pensions ombudsman’s investigators seem to have taken sworn statements from a number of local authority officials on 28 September 2011.

47. The office of the pensions ombudsman wrote to the plaintiff’s trade union representative on 14 February 2013 indicating an intention to close the examination of his complaint. The letter, in relevant part, reads as follows:

“As a rule of thumb examples of overtime which are not in

our opinion eligible to be considered are generic overtime

which any number of employees could have performed and

to which a pool of workers could be made available. This

would include the driving of vehicles/lorries unless the

machine was so specialised that only one or two employees

were trained in its operation and unless trained no other

employees could use the machine.

This office now intends to close this examination as it has

not been proved that in the case of these members that they

comply fully with Circular 12/91. Should it be the case that

you can demonstrate that this is not case as informed by our

explanation above, please do so by return.”

48. It appears that the plaintiff sought to reagitate his complaint to the pensions ombudsman in July 2013. This time the plaintiff was represented by a firm of solicitors. (It should be explained that a different firm of solicitors now acts for the plaintiff in the present proceedings).

49. The pensions ombudsman appears to have reopened the investigation. This involved, inter alia, consideration of an affidavit submitted on behalf of the plaintiff by a former colleague of his (Mr. Christy Joyce) who stated that he recalled disciplinary action being taken against the plaintiff.

50. The pensions ombudsman’s office then issued a series of letters indicating that the pensions ombudsman was closing the complaints file.

51. The position was stated as follows in a letter from the pensions ombudsman issued on 11 April 2014:

“The Office of the Pensions Ombudsman must provide an

independent and impartial service. Applying this principle

to the case at hand this Office cannot, based on all of the

available information from both sides, state categorically and

as a matter of fact that the overtime worked by Mr. Browne

up to the point of his retirement in 2008 was compulsory

overtime emanating from disciplinary action which allegedly

occurred circa 1978/1979.

We respectfully acknowledge receipt of the affidavit of

Mr. Christy Joyce dated 17th February 2014. This

submission has been very carefully considered and examined

in the overall context of this case. There is no question mark

over the sincerity of Mr. Joyce or his recollection of the

situation.

The issue of whether the overtime worked by Mr. Browne

was part and parcel of his employment is a moot point as

both this condition and the condition concerning the

compulsory nature of overtime would have to be complied

with in order for overtime to be reckoned for pension

purposes.

Moving to paragraph 4 (b) of Circular 12/91, this provides

that the overtime was work of a regular and recurring nature

(i.e. that the particular officer or employee was required to

perform the duties during specified hours on specified days).

We understand that the overtime worked by Mr. Browne

related to road maintenance activities and as such was

seasonal, being influenced by weather conditions which

fluctuate randomly. We have also examined the record of

overtime units provided by you in respect of Mr. Browne's

plant operator duties between 1995 and 2008. It appears

from this document that the amount of overtime worked by

Mr. Browne fluctuated and was not regular and recurring.

The overtime units recorded in this document varied from 0

to 53.75 units per week. Indeed on 50 of the weeks* there

was no overtime worked. For the specific purpose of the

Circular, the overtime worked by Mr. Browne does not

appear to be of a regular and recurring nature.

Finally, according to Paragraph 4 (c) of Circular 12/91, the

overtime must be work of a kind which could only be

performed outside of, and in addition to, the normal hours of

work of the grade to which the officer or employee belonged.

This is another point where there are opposing views. In the

absence of concrete evidence, this Office will not speculate

in relation to same. In conclusion, this Office has carefully examined Mr.

Browne’s case on several separate occasions. We have most

recently carried out a thorough examination of the facts of

this case. Based on our recent exhaustive examination of the

matter, we remain of the view that Mr. Browne’s overtime

payments do not qualify for pension purposes. I regret that

the decision is not the one which Mr. Browne would favour.

However, we believe that based on all the available

information to hand from both parties that this is the only

outcome that can be reached. We will now close our file on this case.”

* This figure is incorrect: the agreed overtime spreadsheet

indicates that there were only ten weeks in the final three

years for which no overtime is recorded. These presumably

coincide with annual leave weeks.

52. In a letter of 20 June 2014, the office of the pensions ombudsman wrote as follows: “It remains the position of this Office that Mr. Browne’s file will not be re-opened.

As discussed in previous communication, this Office has

thoroughly examined all the relevant facts of this case.

Based on this analysis, we cannot, in the absence of concrete

documentary evidence, state definitely and as a matter of fact

that the overtime worked by Mr. Browne was compulsory in

nature. Neither can this office state with certainty that the

alleged compulsory overtime worked by Mr. Browne up to

the point of his retirement in 2008 stemmed from

disciplinary action dating back to 1978/1979.”

53. It seems that the solicitors then acting on behalf of the plaintiff were anxious to secure a formal determination in respect of the complaint which, in turn, would open the right of appeal to the High Court pursuant to section 140 of the Pensions Act 1990. To this end, the solicitors wrote to the pensions ombudsman on

6 January 2015 seeking confirmation as to whether their client was still within time, should he so wish, to appeal the matter to the High Court.

54. The pensions ombudsman replied by letter dated 8 January 2015. The letter, in material part, reads as follows:

“It appears that there is some confusion regarding the status

of this complaint.

My office has on various occasions indicated that it cannot

find evidence that the overtime worked by your client

complies with the conditions set out in the Department of the

Environment Circular governing the reckonability of

overtime for pension purposes under the Local Government

Superannuation Scheme. However, we have a series of

assertions by your client that he was compelled to work

overtime. On contact with officials of the County Council

my investigators had been advised on numerous occasions

that overtime was not compulsory and that the road

maintenance activities undertaken by your client involved

irregular and fluctuating amounts of overtime, as, among

other things, the weather conditions would determine

whether overtime could be worked at all.

We have not been able to find any evidence that disciplinary

action taken against your client was for refusal to work

overtime. In fact, the reverse appears to have been the case

and, on one occasion, it appears that a senior executive

engineer with the council complained that your client was

time wasting in order to ‘manufacture’ overtime.

Representations made on behalf of your client by SIPTU in

relation to his original complaint brought in 2008 indicated

that over a three year period, he worked a ‘weekly average’

of between 21.11 and 24.02 hours. However, our

investigations revealed that the actual amounts worked in a

week ranged from 0 to 57 hours.

[…]

As things stand, I have not made a formal Determination in

relation to your client. I had hoped that this would not be

necessary. In the absence of a Determination, an Appeal to

the High Court is not available. I am, however, prepared to

make a formal Determination if [this] is what your client

wants. I should, however, advise you at this stage that I do

not find your client credible and any Determination that I

make on a formal basis is likely to reflect this belief.”

55. As appears, the pensions ombudsman’s reply was to the effect that if matters did progress as far as a formal determination, it would not be favourable to the plaintiff. I will return to address this further at paragraphs 89 to 94 below.

56. The correspondence between the plaintiff’s then solicitors and the pensions ombudsman appears to have ended at this point. The question of what happened next was raised in cross-examination, but the plaintiff did not have a clear recollection. At all events, the parties are agreed that the plaintiff’s side did not take up the pensions ombudsman’s offer to make a formal determination on the complaint. The within court proceedings were commenced on 5 October 2020.

57. It is not entirely clear from the correspondence, which had been handed in to the court on an agreed basis, as to why the pensions ombudsman’s initial approach had been to close the complaint file without making a formal determination. Some indication of his thinking is to be found in the letter of 14 November 2013 as follows:

“It is not the function of the Office of the Pensions

Ombudsman to make decisions as to the nature of the

overtime worked by an individual. It is the view of this

Office that questions such as the compulsory nature of

overtime are employment issues which must be resolved

between employers and employees. This Office will only act

where it is presented with concrete evidence that the

overtime in dispute complies fully with all the relevant

provisions of Circular 12/91.”

58. As appears, the view had been expressed in this letter that it was not the function of the pensions ombudsman to make decisions in respect of disputes as to the nature of the overtime worked by an individual (at least not in the absence of concrete evidence). This was a theme which was returned to, from time to time, in the submissions made on behalf of the plaintiff to this court. It was also submitted that the office of the pensions ombudsman had indicated in a letter dated March 2017 that any dispute regarding the classification of overtime payments falls to be resolved through the employment dispute mechanisms of the Workplace Relations Commission (“WRC”) and Labour Court. This letter had, seemingly, been written in response to a representation made on behalf of the plaintiff by a member of Dáil Éireann.

59. Counsel also drew my attention to a determination of the WRC which, it was suggested, indicated that a dispute in relation to the reckonability of overtime for pension purposes is a matter for the WRC rather than the pensions ombudsman. (A Worker v. A County Council, ADJ-00000524). In fact, the WRC’s determination is more ambiguous and the adjudication officer’s decision to accept jurisdiction in the particular case appears to have been informed by the fact that the dispute had arisen at a time when the complainant had still been in employment.

60. Strictly speaking, none of this is of direct relevance to the issues which the court has to determine in the present proceedings. The nature of the relief sought in these proceedings is, in effect, declaratory relief that the plaintiff was entitled to reckon at least part of the overtime hours for pension purposes. This declaratory relief is sought, primarily, on the basis of a claim for breach of contract and/or breach of statutory duty. The High Court has, in principle, jurisdiction to determine the dispute between the parties. The questions of whether there has been a breach of contract and/or a breach of statutory duty are justiciable before the High Court. In the circumstances, the fact, if fact it be, that the pensions ombudsman may, in another case, have expressed the view that a dispute in relation to reckonability of overtime for pension purposes is a matter for the WRC rather than his office cannot affect the High Court’s jurisdiction to entertain these proceedings. It is a matter for the High Court to rule upon its own jurisdiction.

PROCEEDINGS AGAINST PENSIONS OMBUDSMAN DISCONTINUED

61. It should be explained that the pensions ombudsman had been joined as a defendant to the present proceedings. Indeed, it is fair to say that the gravamen of the plaintiff’s case, as initially advanced, had comprised a challenge to the actions of the pensions ombudsman. Shortly before the trial of the action, however, the plaintiff reoriented his case and the pensions ombudsman has now been released from the proceedings. To this end, it seems that an arrangement has been reached between the plaintiff and the pensions ombudsman whereby the latter has agreed not to seek to recover his legal costs. A letter was handed in to the court which indicates that the pensions ombudsman is not pursuing any application for costs as against the plaintiff. It does not seem that a formal notice of discontinuance has been served. The final order in the proceedings will record that the claim against the pensions ombudsman has been withdrawn.

62. It would have been preferable had an amended statement of claim been served following the withdrawal of the proceedings as against the pensions ombudsman. This is because the original version of the statement of claim is replete with grievances relating to supposed failings by the pensions ombudsman. These issues have now fallen out of the case. The continued presence of these issues in the statement of claim proved a distraction in that, from time to time, the plaintiff’s side yielded to the temptation to seek to resurrect their grievances against the pensions ombudsman. This tended to obscure the real matters in controversy between the remaining parties to the proceedings.

PROCEDURAL OBJECTIONS

PENSIONS OMBUDSMAN: RES JUDICATA?

63. The local authority has raised a procedural objection to the effect that the plaintiff is precluded, by dint of his having previously made a complaint to the pensions ombudsman, from pursuing these court proceedings. The objection is advanced by reference to two related arguments as follows. First, it is said that the scheme of Part XI of the Pensions Act 1990 is such that the mere making of a complaint to the pensions ombudsman precludes the complainant from pursuing court proceedings thereafter. This is said to be so irrespective of whether the complaint ever culminates in a formal determination upon same by the pensions ombudsman. Second, and more generally, it is said that the plaintiff is precluded and estopped from pursuing court proceedings by reason of the doctrine of res judicata.

64. To put the procedural objection in context, it is necessary to say something about the processing of the complaint by the pensions ombudsman. The pensions ombudsman had a statutory discretion (“may”) to investigate and determine a complaint. The approach adopted by the pensions ombudsman, initially at least, had been to close the complaint without making a formal determination. This approach seems to have been informed, in part at least, by the view that it was not possible for the pensions ombudsman to reach a firm conclusion on the disputed question of fact as to whether the carrying out or performance of overtime hours was optional or compulsory. (See letter of 14 November 2013 cited at paragraph 57 above).

65. The stance settled upon by the pensions ombudsman had been that whereas he had hoped that a formal determination would not be necessary, he would make one if the plaintiff wanted. See letter of 8 January 2015 cited at paragraph 54 above.

66. The parties are in disagreement as to what are the implications of the foregoing correspondence. On one side, counsel on behalf of the local authority submits that the offer of a formal determination on a complaint is, in effect, as good as a formal determination. On the other side, counsel on behalf of the plaintiff suggests that the plaintiff, having been shown the instrument of his torture, i.e. the threat of an adverse finding on credibility, chose not to pursue the complaint any further.

67. The Pensions Act 1990 recognises that a pensions dispute can, in principle, be the subject of both a complaint to the pensions ombudsman and court proceedings. The Act seeks to regulate the interaction between the two dispute resolution mechanisms by addressing a number of contingencies as follows. The precise outcome turns on the timing of one mechanism relative to the other. (i). The first contingency is where court proceedings have already been issued prior to the making of a complaint to the pensions ombudsman.

The existence of court proceedings operates to oust any jurisdiction on the part of the pensions ombudsman to investigate the same matters. (Section 131(7)(a)). (ii). The second contingency is the obverse of the first, i.e. a complaint has already been made to the pensions ombudsman prior to court proceedings being instituted. The Act provides for the possibility of an application for a stay of the court proceedings pending the determination of the complaint. The court may stay the proceedings before it if satisfied that there is “no sufficient reason” why the dispute should not be investigated by the pensions ombudsman. Relevantly, the right to apply for a stay on the court proceedings is lost once the respondent delivers any pleadings or takes any other steps in those proceedings. Put otherwise, the respondent must elect between contesting the court proceedings on the merits, or, alternatively, allowing the pensions ombudsman to determine the dispute. There is a fork in the procedural road which, once passed, cannot be revisited. The choice of one branch of the road forecloses the opportunity of having the dispute determined by the pensions ombudsman. (Section 136). (iii). The third contingency is where the pensions ombudsman has made a formal determination. Section 140 confers—upon a party to an investigation—a right of appeal to the High Court from a determination of the pensions ombudsman. As appears from the case law discussed at paragraphs 70 to 73 below, the legislative scheme had been interpreted as precluding a person, who has the right of appeal available to them, from pursuing substantive court proceedings in respect of the same subject matter.

ANALYSIS OF LOCAL AUTHORITY’S ARGUMENT

68. The local authority seeks to argue that the plaintiff is precluded from pursuing these court proceedings in circumstances where he failed to seek to appeal or to otherwise challenge the outcome of the process before the pensions ombudsman. This argument is advanced both as a matter of statutory interpretation, and, more generally, by reference to the doctrine of res judicata.

69. An attempt is made in the analysis which follows to address the question of statutory interpretation first. However, there is a considerable convergence between the two concepts and it is not always possible to maintain a rigid distinction between them. Indeed, as apparent from the case law cited below, the two concepts are often combined.

70. The leading case is that of Murray v. Trustees of Irish Airlines (General Employees) Superannuation Scheme [2007] IEHC 27, [2007] 2 ILRM 196 (at page 204). The High Court (Kelly J.) held that it would be contrary to the policy of the legislature to allow a complainant, who is dissatisfied with a determination, to commence substantive court proceedings:

“In my view it would be contrary to the policy of the

legislature as gleaned from the relevant statutory provisions

that it should be open to a party to avail himself of the

statutory machinery but when dissatisfied with the result

seek, not merely to exercise the statutory right of appeal, but

also to commence in this court proceedings of a substantive

nature which seek to, in effect, set aside the determination of

the Ombudsman.

A party […] who is aggrieved with the determination of the

trustees may, at his option, avail himself of the services of

the Ombudsman or bring proceedings in an appropriate court

for declaratory or other relief. He may not do the latter when

in receipt of an adverse determination from the Ombudsman.

That is so because the determination of the Ombudsman is

res judicata of the dispute in question, subject only to the

right of appeal.”

71. The analysis in Murray has since been approved of by the Court of Appeal in a number of judgments. An example of one such judgment is Murphy v. Canada Life Assurance Ltd [2016] IECA 128. Hogan J. held as follows (at paragraphs 8 to 11):

“In my view, it is perfectly clear, both as a matter of

principle, statute and authority that, broadly speaking, a

claimant cannot advance a complaint to the FSO and then,

should that claim prove unsuccessful, re-litigate the same

matter before the High Court under the guise of separate

proceedings. There is a clear public interest in the finality of

litigation, coupled with a requirement that a litigant should

advance the entirety of a claim and not endeavour to litigate

matters in a piecemeal basis. The potential for the abuse of

the litigious process by repeated applications is manifest.

These principles are reflected in the doctrine of res judicata,

so that a matter which has been finally judicially decided

cannot generally be re-opened. The principles of res

judicata serves not only to protect these important public

interests, but also to safeguard the legitimate interests of

litigants to ensure that they are not harassed by the

unnecessarily burdensome litigant who endeavours to re-

open matters which have already been judicially determined.

The doctrine does not apply simply to judicial findings, but

also to administrative determinations which, in the nature of

things, are final. […]

[…] the Oireachtas intended that adjudications by the FSO

[financial services ombudsman] would have a binding

character, subject only to an appeal. It would be quite

inconsistent with that legislative intent if these statutory

provisions could be effectively circumvented by issuing new

High Court proceedings which attempted in effect to re-

litigate the same matters that were already determined by the

FSO in the course of the adjudication upon the earlier

complaint.”

72. In Crowley v. Zurich Life Assurance plc [2016] IECA 381, the Court of Appeal reiterated that it is impermissible for a complainant to attempt to re-litigate a matter that is already the subject of a “definitive and final determination” by an ombudsman.

73. Although these judgments each concerned a finding by the financial services ombudsman, the same logic applies to the pensions ombudsman because the statutory architecture is similar. In each instance, the finding or determination is binding or enforceable unless an appeal is brought within time.

74. The question which arises in the present proceedings is slightly different. Here, the question calls for the identification of the precise point in the complaints process at which the matter becomes res judicata. It is apparent from the documentation furnished by the pensions ombudsman (by way of discovery) that he regarded himself as having a discretion as to whether to pursue the investigation of a complaint to a formal determination. The pensions ombudsman indicated, in his letters of April and June 2014, that he intended to close the complaint file without making a formal determination. It was only when pressed by the plaintiff’s then solicitors that the pensions ombudsman indicated, in January 2015, that he would make a formal determination if requested. This offer was never taken up by the plaintiff.

75. The making of a formal determination by the pensions ombudsman represents a procedural milestone which, once passed, bars any return to the path of conventional court proceedings. The only path remaining is a narrower one, namely, a statutory right of appeal to the High Court against the pensions ombudsman’s determination. Crucially, this milestone was never reached in the present case. Here, the pensions ombudsman was content to close the complaint file without making a formal determination and the plaintiff did not take up the pensions ombudsman’s (belated) invitation to have him do otherwise. In the absence of a formal determination, the statutory right of appeal to the High Court did not vest. It follows that the condition precedent to the statutory preclusion on court proceedings has not been satisfied. As explained in the case law discussed at paragraphs 70 to 73 above, the rationale is that a party who is dissatisfied with a formal determination of an ombudsman has a remedy available to them, i.e. a statutory right of appeal, and it would be contrary to the purpose of the legislation to allow them to relitigate the entire dispute afresh in court proceedings. This rationale does not extend to a party, such as the plaintiff, in respect of whom the statutory right of appeal has never vested.

76. The peculiar feature of the present case is, of course, the fact that the pensions ombudsman offered to make a formal determination if requested. But for this feature, there would be no possible grounds for arguing that the statutory preclusion on court proceedings arose. Even the existence of this feature, however, is not enough to change the analysis. The statutory right of appeal only vests in circumstances where the pensions ombudsman makes a formal determination. There is no proper basis for extending the statutory language to capture cases where no formal determination has been made. The wording of section 140 of the Pensions Act 1990 is clear-cut and confines the appeal to one against a determination. There is nothing in the legislative context which justifies a departure from the ordinary and natural wording. The Act identifies the procedural milestones, the forks in the road as it were, the passing of which has certain consequences. One of these relates to the loss of the right to apply for a stay on parallel court proceedings. Another, to the right of appeal to the High Court, with the implicit loss of the right to pursue conventional court proceedings. These are policy choices for the legislature. There are plausible reasons for which the legislature may have decided that a complainant should be entitled to withdraw a complaint short of a formal determination, without affecting their right of access to the courts by way of other proceedings. It is imperative, in the interests of legal certainty, that the circumstances in which a party loses their entitlement to pursue their right of access to the courts are readily identifiable from the legislation. There is nothing in the Pensions Act 1990 which indicates such a loss other than in cases where the complaint process has culminated in a formal determination.

77. It follows, therefore, as a matter of statutory interpretation that the preclusion on pursuing court proceedings only arises where there has been a formal determination and the concomitant statutory right of appeal has vested.

78. The local authority advanced a second, more general, argument by reference to the doctrine of res judicata. Counsel relies, in particular, on the judgment in Gallagher v. ACC Bank plc [2011] IEHC 367 (at paragraphs 19 and 24). Before turning to examine this argument in detail, it is useful to explain what the doctrine of res judicata entails.

Res Judicata: An overview

79. The term res judicata is often used as an umbrella term, embracing a number of related principles all of which seek to advance the public interest in the finality of litigation. The strictest form of res judicata is cause of action estoppel, whereby a party is precluded from pursuing a particular cause of action in consequence of a final judgment in earlier proceedings. The next form of res judicata is issue estoppel, whereby a party will, generally, be precluded from relitigating an issue of fact or law which has previously been determined against them in earlier proceedings. The determination of that issue must have been necessary to the outcome of the earlier proceedings, i.e. the finding on the issue must have been fundamental rather than merely collateral or incidental.

80. Put otherwise, notwithstanding that the judgment in earlier proceedings may not have entailed a formal determination on the legal right asserted in subsequent proceedings, it may nevertheless have determined an issue which is common to both sets of proceedings. Provided that the determination of this issue had been an essential part of the rationale for the earlier judgment, then the finding on the issue will, generally, be binding in the subsequent proceedings.

81. There is a third species of res judicata, whereby a party will, generally, be precluded from litigating an issue in a second set of proceedings if that party should have—but failed—to raise the issue in an earlier set of proceedings. This principle is described as the rule in Henderson v. Henderson.

82. The case law indicates that the doctrine of res judicata is, in principle, capable of extending to the determinations made by administrative tribunals including, relevantly, the (former) pensions ombudsman and the (former) financial services ombudsman.

83. The rationale for, and the values sought to be protected by, the doctrine of res judicata have been discussed in detail by the Supreme Court in Arklow Holidays Ltd v. An Bord Pleanála [2011] IESC 29, [2012] 2 IR 99. Relevantly, these include the public policy that an individual has a right to be protected from a vexatious multiplication of suits and the public interest in the finality of litigation. The risk of conflicting decisions has been identified elsewhere as an additional rationale.

84. The proper approach to determining whether a particular decision has given rise to res judicata has been considered by the Supreme Court in Munnelly v. Hassett [2023] IESC 29. O’Donnell C.J. explained that the principal focus of a claim of res judicata is “what” was decided, not “how” it was decided. In the first place at least, an assessment of whether res judicata applies should be addressed by as forensic a scrutiny as possible of what case had been pleaded, and what the court decided, and a subsequent court should be reluctant to accept an invitation to go behind what the documents show.

Res Judicata and the Pensions Act 1990

85. As is apparent from the case law discussed above, the doctrine of res judicata is predicated on the existence of a final and binding decision. The doctrine is intended to advance the public interest in the finality of litigation. This extends to certain types of administrative decisions, such as those provided for under the Pensions Act 1990, which are enforceable by court order and are subject to a statutory right of appeal to the High Court.

86. The peculiar feature of the present case is that whereas the pensions ombudsman did not make a formal determination, he offered to do so. Indeed, the pensions ombudsman also indicated, in outline, what the determination would likely be.

87. This sequence of events does not give rise to res judicata. For reasons similar to those discussed above in the context of the exercise in statutory interpretation, an offer of a determination is not equivalent to an actual determination. Were it otherwise, then a complainant would find themselves in a legal limbo: neither the courts nor the pensions ombudsman would have adjudicated upon the dispute, yet the complainant would be precluded from instituting court proceedings.

88. The local authority’s emphasis on a single line in Gallagher (cited above) to the effect that the court’s jurisdiction is circumscribed “once a complaint is made” is misplaced. It is apparent from Gallagher that the High Court expressly endorsed the approach in Murray v. Trustees of Irish Airlines (General Employees) Superannuation Scheme. As appears from paragraph 70 above, the rationale of that judgment is predicated on the receipt of a final determination. Moreover, these two High Court judgments have to be read now in the light of the Court of Appeal case law cited above.

89. For completeness, it is necessary to address a related submission to the effect that the absence of a formal determination should be visited upon the plaintiff. Counsel on behalf of the local authority argued that the fact that there is no formal determination in this case is “entirely the fault of” the plaintiff in circumstances where the pensions ombudsman had left it in the gift of the plaintiff as to whether a determination would be made. Counsel acknowledged that this would entail the plaintiff having “to submit to a finding of adverse credibility”, but suggested that the plaintiff could not use that as a reason to avoid the statutory scheme. (Transcript, Day 3, pp. 122 to 125).

90. With respect, these arguments cannot be accepted. Even if, contrary to my finding above, the doctrine of res judicata might apply in principle, the court always retains a discretion as to whether to dismiss proceedings by reference to the doctrine. This is especially so where the species of res judicata relied upon is that a party could have, but did not, pursue an issue in earlier proceedings. The position is put as follows in A.A. v. Medical Council [2003] IESC 70, [2003] 4 IR 302 (at page 317 per Hardiman J.):

“Rules or principles so described cannot, in their nature, be

applied in an automatic or unconsidered fashion. Indeed, it

appears to me that sympathetic consideration must be given

to the position of a plaintiff or applicant who on the face of

it is exercising his right of access to the courts for the

determination of his civil rights or liabilities. […]”

91. It would be inappropriate to preclude a party from pursuing court proceedings unless he had previously been afforded a fair hearing in the context of the earlier administrative proceedings which are said to give rise to res judicata. Here, the approach adopted by the (former) pensions ombudsman was patently unfair. The final correspondence from the pensions ombudsman has been cited at paragraph 54 above. As appears, the pensions ombudsman indicated that if matters did progress to a formal determination, same would likely not be favourable to the plaintiff and would likely entail the making of adverse findings in relation to his credibility. This threat appears to have been predicated, first, on an unattributed and unsubstantiated allegation that the plaintiff had “manufactured” overtime, and, second, on a mathematical-type error. In this latter connection, the pensions ombudsman appears to have misunderstood the distinction between the calculated average of a data set and the outliers within that data set. The figures cited for the average hours are mathematically correct: this is so notwithstanding that the week‑to‑week overtime showed substantial variability. The pensions ombudsman also overlooks the fact that the plaintiff was entitled to four annual leave weeks which may explain the very small number of weeks each year in which no overtime hours were carried out.

92. It would have been patently unfair to make adverse findings in relation to the plaintiff’s credibility in circumstances where he had never been afforded an oral hearing. This is especially so where the findings were to be informed by an allegation, i.e. that the plaintiff had manufactured overtime, which had never been put to the plaintiff and in respect of which the plaintiff did not have an opportunity to cross-examine his accusers. The pensions ombudsman’s investigators had met privately with officials of the local authority in the absence of the plaintiff. The copies of the sworn statements taken do not appear to have ever been disclosed to the plaintiff. The unfairness is all the graver in circumstances where the source of the allegation has never been identified.

93. The local authority has not sought to stand over the allegation that the plaintiff had manufactured overtime. It is paradoxical, therefore, that the local authority, in arguendo, should seek to criticise the plaintiff for his failure to submit to what would have been a patently unfair decision. There was no obligation upon the plaintiff to submit to what would have been a false finding that he had manufactured overtime. It certainly did not amount to an abuse of process for the plaintiff not to have done so and to have commenced court proceedings instead.

94. Accordingly, even if an unaccepted offer to make a formal determination might, in principle, be capable of giving rise to res judicata in certain circumstances, this is an appropriate case for the court to exercise its discretion to refuse to dismiss the proceedings on that basis. This court will not lend its imprimatur to what would have been a patently unfair decision by the (former) pensions ombudsman.

ORDER 84 AND JUDICIAL REVIEW TIME-LIMIT

95. The local authority, in its written legal submissions, contends that these proceedings should have been pursued by way of an application for judicial review pursuant to Order 84 of the Rules of the Superior Courts. It is further contended that the proceedings, in essence, comprise a claim for damages based on a challenge to the application of a public law measure, i.e. the Ministerial Circular, by a public authority. It is said to follow, therefore, that the proceedings are subject to the three month time-limit prescribed under Order 84, rule 21 and that the proceedings were brought years out of time. The judgment in Muldoon v. Minister for the Environment and Local Government [2023] IECA 61 (per Costello J.) is cited as authority for the proposition that where an action for damages is based on a challenge to a public law measure, then the three month time-limit ought to be applied by analogy to the action, notwithstanding that it had been brought by way of plenary proceedings.

96. With respect, the submission that these proceedings are public law proceedings cannot be accepted as correct. The claim in the present proceedings is properly characterised as a private law dispute, involving a claim as between a retired employee and his former employer in respect of the employee’s entitlements under an occupational pension scheme. The employee had not been an officeholder. Rather, his employment relationship had been governed, primarily, by a contract of employment. As with any other employee, whether public or private, much of the employment relationship had been regulated by statute, including, most relevantly, the Organisation of Working Time Act 1997. This does not detract from the private law nature of the employment relationship.

97. It is correct to say that the pension scheme has been created pursuant to statute. This is not sufficient, in and of itself, to render the operation and application of the pension scheme a matter of public law, such as to attract the procedural requirements under Order 84. Not every act on the part of a public authority is amenable to judicial review. This is especially true in an employment context. The analysis should be directed to the nature of the function which the public authority is carrying out. Here, the impugned act relates to the performance by the local authority of its role as the administrator of an occupational pension scheme. The role of the local authority is similar to that of the administrator or trustees of any pension scheme (whether serving public or private sector employees). The type of legal issues which arise in the operation of a pensions scheme will be the same in each sector. It cannot sensibly be said that the local authority, in applying an occupational pension scheme to any given individual, is exercising a public law function or one which is peculiar to a local government employer (as opposed to a private sector employer). Indeed, as exemplified by the present case, the complaints procedure under the Pensions Act 1990 applied to both public and private sector pension schemes. This is reflected in the definition of “employee” under the Act. It would be to return to the worst excesses of procedural formalism to insist that a claim in respect of an occupational pension be pursued by way of the judicial review procedure.

98. Accordingly, the claims made in these proceedings do not have a sufficiently strong public law element to trigger the three month time-limit (whether directly or by analogy). Rather, the timing of the claims is subject to the Statute of Limitations Act 1957.

STATUTE OF LIMITATIONS

99. The local authority contends that these court proceedings are statute-barred. More specifically, it is said that any cause of action had accrued, at the very latest, by 7 May 2008, i.e. the date upon which the internal appeal determination was issued by the director of services. It is argued that this determination represented the final position of the local authority qua employer regarding the plaintiff’s pension entitlements. On this argument, the limitation period expired on 7 May 2014, whereas these court proceedings were not instituted until

5 October 2020.

100. With respect, the local authority’s analysis of the application of the Statute of Limitations Act 1957 is too narrow and fails to have regard to the continuing obligation to pay the (correct) pension to the plaintiff. The plaintiff is entitled, as a beneficiary of the pension scheme, to be paid the appropriate pension at regular intervals. The local authority is, therefore, under a continuing duty to the plaintiff. A cause of action accrues each time the local authority fails to pay the full amount of the periodic allowance due to the plaintiff on a particular date (whether on a weekly, fortnightly or monthly basis). If and insofar as the plaintiff has been underpaid his pension, then he is entitled to recover the balance for the period beginning six years prior to the commencement of the present proceedings. The relevant limitation period is six years irrespective of whether the claim is characterised as a claim for breach of contract or for (tortious) breach of statutory duty (Section 11 of the Statute of Limitations Act 1957). The present proceedings were instituted in October 2020 and, therefore, it follows that the plaintiff is within time to recover any shortfall in his proper pension provision from the period October 2014 onwards.

101. The plaintiff cannot, however, pursue a claim in respect of any earlier period of time. This has the consequence that the plaintiff is not only precluded from recovering any shortfall in his regular pension payments prior to October 2014, but he is also precluded from recovering any shortfall in the lump sum payment. Under the terms of the pension scheme, a retired employee is entitled to a lump sum payment upon the date of retirement. Here, the date of retirement was February 2008. If and insofar as there is any shortfall in the lump sum payment, any claim in respect of same is statute-barred.

102. For completeness, it should be observed that even if, contrary to the findings above, the action were not for a continuing breach, the proceedings would not be entirely statute-barred. This is because the local authority’s submission that any cause of action had accrued, at the very latest, by 7 May 2008 is incorrect. As appears from the procedural history, the local authority had, in some instances at the request of the pensions ombudsman, revisited its determination on a number of occasions. As late as 20 May 2011, the local authority had issued a further determination and advised of a right to refer the complaint to the pensions ombudsman. The process before the pensions ombudsman only concluded with the letter of 8 January 2015. The court proceedings were issued within six years of that date.

DISCUSSION OF THE MERITS OF THE CLAIM

WHETHER ANY OVERTIME PAYMENTS ARE RECKONABLE

Introduction

103. Having addressed and dismissed the procedural objections raised by the local authority, it is necessary next to consider the substantive issue raised by the proceedings, namely whether any of the overtime payments are reckonable for pension purposes. This requires consideration of the question of whether any of the overtime payments fulfil the criteria under the Circular.

104. Before turning to that task, however, it is appropriate to pause briefly in order to identify the lens through which the court is to consider the question. In particular, it is appropriate to ask whether the court should show any deference to the views of the local authority on the interpretation of the Circular.

105. As explained earlier, the pensions ombudsman never reached a formal determination on the plaintiff’s complaint. It is not necessary, therefore, to consider whether any deference need be shown to a formal determination of an ombudsman in respect of a pensions dispute. Here, the issue is whether any deference need be shown to the earlier views stated by the local authority. The answer to this is “no”. This is because the question of whether the criteria under the Circular have been fulfilled turns, in this case, largely on the interpretation of the contract of employment when read in conjunction with the then applicable employment legislation. These are questions of law and not ones in respect of which the local authority can be said to have any peculiar expertise, certainly not relative to a court of law. It would also be anomalous were the court expected to defer to the local authority in respect of a matter in which the local authority has a direct financial interest as the party paying the pension.

106. In this regard, a useful analogy can be drawn with the case law in relation to a “pure” question of law. This would include cases where contractual interpretation discloses a question of law alone (as opposed to a mixed question of law and fact). The general position is that the courts should not adopt a deferential stance to a decision or determination on a “pure” question of law. An example of this approach is to be found in Utmost Paneurope DAC v. Financial Services and Pensions Ombudsman [2022] IECA 77.

107. Having regard to the issues arising in this case, the proper approach is for the court to address the question of whether any of the overtime payments are reckonable for pension purposes without showing any deference to the various views expressed by the local authority throughout the period 2008 to 2013. Of course, the evidence given on behalf of the local authority to the court and the legal submissions made on its behalf have been carefully considered in reaching this judgment.

Structure of discussion

108. There is some overlap between the various criteria prescribed under the Circular. For ease of exposition, and to avoid unnecessary duplication, it is proposed to consider the criteria under three broad themes as follows. It should be emphasised however that the analysis must be read as a whole.

(1). Overtime work: not optional

109. The Circular stipulates that the overtime work must not be optional, i.e. that the person in question must have had to work the overtime and could not refuse to work it. The employment contract describes the hours of work thus: “As required to carry out the duties of the contract”. In interpreting the employment contract, it is appropriate to have regard to the employment legislation applicable at the time the contract was entered into, i.e. March 2004.

110. First, the Terms of Employment (Information) Act 1994 stipulates that any terms or conditions relating to hours of work (including overtime) must be stated in writing. The language of the domestic legislation must, insofar as possible, be read consistently with Council Directive 91/533/EEC on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship (“Employment Information Directive”). The equivalent provision of the Employment Information Directive refers to “the length of the employee’s normal working day or week”. It follows, therefore, that the local authority, as employer, had been obliged to indicate—whether in the employment contract itself or in a separate document—the terms and conditions in relation to the normal working hours and overtime hours.

111. Second, the Organisation of Working Time Act 1997 stipulates that an employer shall not permit an employee to work, in each period of seven days, more than an average of 48 hours. The average is to be calculated over a reference period of four months.

112. More broadly, under the general law of contract, a court is entitled to look at what the parties actually did when implementing the agreement, with a view to determining whether they have, by a course of dealing, established an agreement between themselves (and if so its terms) and/or an agreement that supplements or fills the gaps in the terms of a written document (Revenue Commissioners v.

Karshan (Midlands) Ltd [2023] IESC 24, [2023] 2 ILRM 309 at

paragraph 240).

113. The local authority contends that the employment contract only required the plaintiff to complete 39 hours per week and that any hours worked in excess of that amount constituted optional overtime hours. With respect, this contention can be reconciled with neither the written terms of the employment contract nor the pattern of hours worked under the employment contract.

114. The local authority’s case is that there was a clear demarcation between normal hours and overtime hours, with the latter being voluntary or optional. This supposed demarcation is not reflected in the employment contract. Rather, the contract provides that the hours of work are those as required to carry out the duties of the contract. This indicates that the employee, i.e. the plaintiff, had been required to work whatever amount of hours were necessary to carry out his duties. There is nothing in the employment contract which restricts the working hours to 39 hours per week. Had the local authority intended there to be a demarcation between normal hours and overtime hours in terms of contractual obligation, with the latter being voluntary, then it would have been required, in accordance with the Terms of Employment (Information) Act 1994, to state this in writing. This could have been done in the employment contract itself or by way of a separate document. In the event, the only written statement of the contractual hours is the open-ended formula stipulated at clause 6.

115. The only restriction on the total amount of weekly hours is the 48 hour threshold introduced under the Organisation of Working Time Act 1997. As flagged earlier, this Act introduces a 48 hour threshold on the number of hours an employee can be required to perform in any seven day period. (There are special rules as to the calculation of hours and a form of rolling average is allowed but these are not immediately relevant to the principal point, i.e. that there is a threshold).

116. The local authority had been under a legislative duty to comply with this threshold by dint of the Organisation of Working Time Act 1997. It would be inconsistent with the legislative regime for the local authority to have purported to impose a contractual obligation upon any of its employees to work in excess of the 48 hour threshold. Such a provision would be void under section 37 of the Act.

117. (For completeness, it should be explained that it would still represent a breach of the Organisation of Working Time Act 1997 even if individual employees had volunteered to work hours in excess of the 48 hour threshold. The breach would, however, be more egregious had the employer compelled the employees to do so).

118. Having regard to the statutory prohibition on “contracting out” of the threshold on weekly working hours, the employment contract should be interpreted insofar as possible in a manner which is consistent with the Act and the underlying EU legislation to which it gives effect, i.e. Council Directive 93/104/EC. It is only if the employment contract cannot be interpreted in this manner that it would be necessary to apply the avoidance provisions under section 37 of the Organisation of Working Time Act 1997. Here, the wording of the employment contract is sufficiently open to allow for the contractual hours of work to be interpreted as subject to a ceiling of 48 hours per week.

119. The evidence in the present case establishes that the plaintiff had been required to work overtime (subject to the proviso that the total hours could not exceed

48 hours per week). There are two aspects to this evidence. The first relates to the pattern of the hours worked by the plaintiff; the second relates to the approach taken to the anticipated availability of employees to perform overtime hours. These two aspects are elaborated upon below.

120. It is common case between the parties that the normal hours of work for other employees operating out of the machinery yard had been 8 a.m. to 4 p.m. and that the normal working week was 39 hours. Any hours worked in excess of this were regarded as overtime hours and were paid at a higher rate.

121. The evidence, in the form of the agreed overtime spreadsheet, confirms that, for the last three years of his employment, the plaintiff carried out a minimum of

9 hours of overtime work for ninety-five per cent of the weeks (excluding annual leave weeks). This indicates that for the vast majority of the weeks, the plaintiff worked at least 48 hours, i.e. 39 normal hours and 9 overtime hours. This is consistent with the plaintiff’s evidence that he had been required to commence work an hour earlier than normal working hours. This earlier start alone accounts for five overtime hours per week. The additional four hours reflect the hours entailed in the plaintiff returning the tipper truck to the machinery yard following upon the final delivery of the day.

122. The characterisation of the fortieth to forty-eighth hours as non-optional overtime is also consistent with the approach taken by the local authority to the availability of overtime hours. The fact that no rosters were prepared in advance is strongly suggestive of all parties operating on the assumption that overtime was not optional. If the individual employees had a genuine entitlement to refuse to perform overtime hours, then it would have been necessary for the management to canvass the employees as to their availability in advance of the dates when overtime work was required, with a view to determining whether there would be a sufficient number of employees willing to undertake overtime voluntarily, or whether, alternatively, it would be necessary to hire-in private sector plant and operators to make up the shortfall. No such advance canvassing occurred: see paragraphs 30 to 39 above.

123. In summary, a consideration both of the terms of the employment contract and the pattern of hours indicates that the plaintiff had consistently worked 9 hours’ overtime per week. It follows that these hours are reckonable for pension purposes.

124. Indeed, it is apparent that the plaintiff often worked in excess of 48 hours per week which would appear, prima facie, to exceed the threshold permitted under the Organisation of Working Time Act 1997. Lest it be thought that the interpretation of the employment contract which “caps” the obligatory hours at the statutory threshold is unduly favourable to the local authority (which seems to have been prepared to allow the 48 hour threshold to be breached regularly), it should be explained that any interpretation of the employment contract must hold good for all purposes. Were this court to disregard the 48 hour threshold in interpreting the employment contract, this would produce a result whereby the employee would have been contractually obliged to perform unlimited overtime hours on request. This cannot stand as a matter of law. The logic can be tested this way: if the 48 hour threshold is not implied into the employment contract, that would necessitate a practical finding that if the plaintiff had refused to work in excess of 48 hours, he would be in breach of the employment contract and liable to disciplinary action and/or dismissal. This would be inconsistent with the domestic and EU legislation.

(2). Overtime work: “regular and recurring” and “part and parcel”

125. The Circular stipulates that the overtime work must be “regular and recurring”. This stipulation involves two related criteria as follows. The first concerns the timing of work; the second, the amount of work. These criteria are elaborated upon below.

126. As to the timing of the work, the particular employee must have been required to perform the duties during specified hours on specified days: Circular, §4(b). The normal working hours at the machinery yard were 8 a.m. to 4 p.m. The plaintiff was required to start one hour earlier to facilitate the delivery of materials to the location at which the works were being carried out on any particular day. This additional hour meets the requirements under the Circular and is reckonable for pension purposes.

127. The plaintiff’s work involved transporting materials from one of the six depots. The tipper truck would have to be returned to the machinery yard at the end of the working day. This work necessitated the plaintiff performing work at a time beyond normal hours. This work fulfils the criterion of being “work of a regular and recurring nature” within the meaning of §4(b) of the Circular.

128. The related criteria that the employee was required to perform the duties during specified hours on specified days is also satisfied. In the morning, the work had to be commenced one hour earlier to facilitate delivery ahead of the commencement of normal hours. In the evening, the work had to be carried out immediately following the completion of normal hours. The starting point for the evening work had been specified, i.e. 4 p.m., and it is sufficient for the purpose of §4(b) that the end point be specified by reference to the completion of the task, i.e. driving the tipper truck to its overnight location. The intention of the criterion is to ensure that the timing of the work had been specified by the employer. This excludes cases where the relevant employee has autonomy as to when the overtime work is performed, e.g. a clerical worker who is required to complete X hours of overtime work by the end of the week but has discretion as to when precisely he or she does the work.

129. The position of the plaintiff is analogous to a case where an employee is required to work beyond normal hours to clean up a restaurant/kitchen at the end of service. The fact that the precise end point may vary slightly from day to day (depending on how much work is involved) does not render the overtime “irregular”. There was a regular and recurring pattern to the overtime work.

130. For similar reasons, the criterion that the overtime be “part and parcel” of the person’s employment is also fulfilled. The principal duty of the plaintiff had been to facilitate the carrying out of road repairs or road construction by other employees, by delivering material to them in time for the commencement of their working day.

131. Counsel on behalf of the local authority sought to attach great significance to the answers which the plaintiff had given in relation to whether the work was regular and recurring. In answer to a direct question from counsel for the local authority, the employee confirmed that there were no specified hours and no specified days within the meaning of the Circular. The employee explained that the local authority “couldn’t specify a finishing time”. (Transcript, Day 3, pages 16/17).

132. With respect, these answers do not give rise to some sort of “gotcha” moment, whereby the entire dispute must be resolved against the plaintiff by dint of his own words. The matter can be tested this way. Suppose the plaintiff had, in answer to his own counsel, said that the overtime was regular and recurring. This would not be determinative of the proceedings. Rather, the question of whether there has been compliance with the Circular entails a question of law. It is ultimately a matter for the court to rule upon. No witness is entitled to give, as admissible evidence, his or her “opinion” on whether the work was regular or recurring, nor as to whether the specified-hours criteria is met. A witness is, of course, entitled to outline the facts as they understand them to be. It is also open to a witness to offer a view as to whether the overtime was compulsory or optional. The interpretation of the Circular is, however, ultimately a matter for the court.

(3). Work can only be performed outside of normal hours

133. The Circular requires that the work be of a kind which could only be performed outside of, and in addition to, the normal hours of work of the grade to which the employee belonged. Much of the analysis under the previous subheading also applies to this criterion. In brief, the plaintiff’s evidence was to the effect that he had been required to commence work one hour prior to normal hours and that his finishing time depended on what time he returned to the machinery yard upon completion of his last load/delivery of the day. His earlier and later start and finishing times (relative to the other workers) were intended to ensure that the plaintiff had a head start so as to facilitate his being able to deliver materials to the other workers at the locus of the particular day’s work. By definition, this is work which had to be done before and after normal working hours by reason of the necessity to have the construction materials in situ ahead of the commencement of the normal working day.

Summary

134. For the reasons explained, nine hours per week of overtime meet the criteria under the Circular.

MALICIOUS FALSEHOOD

135. Section 42 of the Defamation Act 2009 provides as follows: “(1) In an action for slander of title, slander of goods or other malicious falsehood, the plaintiff shall be required to prove that the statement upon which the action is founded—

(a) was untrue,

(b) was published maliciously, and

(c) referred to the plaintiff, his or her property or his or

her office, profession, calling, trade or business.

(2) In an action for slander of title, slander of goods or other

malicious falsehood, the plaintiff shall be required to

prove—

(a) special damage, or

(b) that the publication of the statement was calculated

to cause and was likely to cause financial loss to the

plaintiff in respect of his or her property or his or her

office, profession, calling, trade or business.”

136. In Lappin v. Mediahuis UK Ltd [2023] IEHC 668, a claim for special damages for malicious falsehood was struck out in circumstances where there had been no mention in the statement of claim of any “special damage”, nor any plea to the effect that the publication was calculated to cause and was likely to cause financial loss to the plaintiff in respect of his or her property or his or her office, profession, calling, trade or business.

137. The statement of claim in the present proceedings includes a claim for damages for malicious falsehood. However, the claim has not been properly particularised, still less substantiated in evidence. For example, the local authority official said to have made the false allegation has not been identified. The most that seems to be said is that certain correspondence from the pensions ombudsman implies that he had been told, by unnamed officials within the local authority, that the plaintiff had “manufactured” overtime hours. This reference to an allegation that the overtime figures had in some way been exaggerated appears in the ultimate letter sent by the pensions ombudsman to the plaintiff’s then solicitors on 8 January 2015 (cited at paragraph 54 above).

138. The source of the allegation remains shrouded in mystery. There is no evidence before this court as to when, and by whom, the allegation is said to have been published. The plaintiff’s legal team did not, as they might have done, elect to call the former pensions ombudsman as a witness. The procedural tool of interrogatories was not pursued as against the pensions ombudsman’s office. Indeed, the pensions ombudsman has since been released from the proceedings.

139. It is important to emphasise that the local authority has never suggested, for the purpose of the present proceedings, that the overtime hours had been exaggerated or manufactured. Rather, the local authority accepts—and the parties are agreed—that the overtime hours are accurately stated in the overtime spreadsheet. The principal witness on the part of the local authority agreed with an earlier witness’s assessment that the plaintiff had been an honest worker (Transcript, Day 2, pp. 109–110).

140. As its very name indicates, a key ingredient of the tort of malicious falsehood is that the untrue statement must have been published maliciously. In the absence of any admissible evidence as to when, and by whom, the “manufactured overtime” allegation is said to have been published, it is simply not possible for this court to be satisfied that this aspect of the tort has been fulfilled.

141. Moreover, and in any event, there is no admissible evidence before the court to indicate that the plaintiff suffered any loss or damage as a result of any such allegation having been made (if that be the case). The tort requires that there be special damage. The only special damage which the plaintiff could, conceivably, have suffered as a result of an allegation that he manufactured overtime is that he has been denied his proper pension entitlements. This argument is, however, circular. The plaintiff’s pension entitlements will now be restored by reason of his having succeeded in his claim for breach of statutory duty and/or breach of contract. A claim for malicious falsehood cannot result in any additional damages over and above those recoverable under these heads.

142. In summary, therefore, the plaintiff has not made out a case for malicious falsehood.

CALCULATION OF SHORTFALL IN PENSION PAYMENTS

143. The question of the calculation of the shortfall in pension payments was not addressed in detail at the trial of the action. Rather, the issue was deferred to await the outcome of a judgment on the question of liability. The parties are now entitled to make further submissions on this issue.

144. It may be of some assistance to the parties were the court to indicate a provisional view as to how the calculation might be made. This judgment holds that nine overtime hours per week are reckonable for the purpose of the calculation of the plaintiff’s pension entitlements. Having regard to the six year limitation period, the plaintiff is only entitled to recover the shortfall from October 2014 onwards. The plaintiff is not entitled to recover any amount in relation to the shortfall in the lump-sum payment made on the date of his retirement.

145. Subject to hearing from the parties, it would seem appropriate to distinguish between (i) legacy pension payments, and (ii) future pension payments subsequent to the date of this judgment. There is no necessity to attempt to calculate the capital value of future pension payments, still less to anticipate, by reference to actuarial life expectancy tables, the length of time for which they are likely to be paid. Rather, it seems that the appropriate order is that for all future pension payments, the local authority should pay an increased sum to reflect the additional nine hours. Although no direct evidence has yet been led on this point, there is, presumably, an agreed formula by which the plaintiff’s pension entitlements can be reckoned by reference to the additional weekly overtime hours.

146. The plaintiff would also appear to be entitled to recover some level of interest in relation to the shortfall in payments since October 2014. The parties are invited to attempt to agree the basis upon which such interest might be calculated. In default of agreement, both parties will be entitled to make such submissions as they wish to the court on the question.

CONCLUSION AND NEXT STEPS

147. Once it is recognised that the interpretation of the employment contract must be informed by the 48 hour weekly threshold under the Organisation of Working Time Act 1997, the compass of the factual dispute between the parties narrows significantly. The dispute turns, primarily, on the question of whether it had been compulsory for the plaintiff to perform a minimum of nine hours of overtime work per week (excluding annual leave weeks). For the reasons explained at paragraphs 109 to 124 above, this court has concluded that this amount of overtime hours was compulsory. This court has also concluded that the overtime work was regular and recurring; had to be carried out at specified hours; had to be performed outside normal hours to facilitate the timely commencement of work by other employees; and was part and parcel of the plaintiff’s employment. See paragraphs 125 to 133 above.

148. In brief outline, the above conclusions are grounded on the wording of the employment contract (read in light of the employment rights legislation); the pattern of working hours; the agreed overtime spreadsheet; the exigencies of road construction and road repair works; and the fact that the plaintiff had been required to commence his working day one hour ahead of normal working hours, with his precise end time being dictated by the exigencies of completing deliveries and returning the tipper truck to the machinery yard.

149. It follows, therefore, that nine hours of overtime per week are reckonable for pension purposes. These overtime hours were incorrectly excluded from the calculation, with the consequence that there has been a continuing shortfall in the pension payments made to the plaintiff. Having regard to the six year time period specified under the Statute of Limitations Act 1957 for breach of contract and/or (tortious) breach of statutory duty, the plaintiff is entitled to recover this shortfall (presumably with some level of interest) for the period from October 2014 to date. The plaintiff is entitled to be paid the higher pension prospectively. A possible approach to the calculation of the pension shortfall is suggested, on a provisional basis only, at paragraphs 143 to 146 above.

150. For reasons which pass understanding, Mr. Walsh has been named in the proceedings as a defendant. There is no basis for any relief against Mr. Walsh personally. If and insofar as the plaintiff has any claim in respect of Mr. Walsh’s actions, the claim is properly confined to a claim in vicarious liability against the local authority.

151. The proceedings will be listed, for mention only, on 26 January 2026. This allows the parties a period of time to consider the judgment. On that date, the parties are requested to inform the court whether or not there are any outstanding issues to be adjudicated upon by the court and, if so, to fix a timetable for the exchange of written legal submissions and for a resumed oral hearing.

Appearances

Éanna Mulloy, SC and Michael Forde for the plaintiff instructed by J.V. Geary Solicitors Paul McGarry, SC and Áine Boyle for the defendants instructed by King & McEllin