Complainant

Respondent

Parties

Dermot  Pisani

Transdev Dublin Light Rail Ltd

Representatives

Vivian Cullen SIPTU-Trade Union

Loughlin Deegan ByrneWallace

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00052397-001

25/08/2022

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act, 1998, and has submitted that he was discriminated against by reason of his age and in getting a job (CA- 00052397-001)

The  Complainant, who was represented by SIPTU and gave evidence under oath, commenced employment with the Respondent on the 6th June 2009 as a luas driver. The Complainants dated of birth is the 11th January 1057. In 2022 the Complainant, aged 65,  was given a further one year fixed term contact from the 11th January 2022 to the 10th January 2023.

The Complainant sought a further one year extension of employment but was informed by email of the 30th June 2022 that his employment would terminate on the 10th January 2023.

The Complainant submitted that no empirical evidence was established to justify or the substantiate the refusal for a further one year fixed term contract. There was no appeals process from the Respondents decision. Further, the Complainant was not offered any the medical examination to establish his fitness to continue in his role.

The Complainant submitted that the Respondent has not objectively and reasonably justified that there was a legitimate aim to terminate the employment of the complaint and no other conclusion is possible other than the complainant was discriminated against on the grounds of age.

This Complaint  was received by the Workplace Relations Commission on the 25th August 2022.

The Respondent accepts the background facts and timeline in relation to the Complainants employment.

The Respondent submitted that luas tram drivers have a contractual retirement age of 65 years. The Labour Court has already determined that this retirement age is objectively justified within the meaning of the act of 1998 and Directive 2000/78/EC. Further to a collective agreement of March 2020 and in light of the provisions of the “Code of Practice on Longer Working “ the Respondent now grants luas drivers are single one year fixed term contract for after they reach  retirement age. To get such contract, drivers must apply to a process and successfully complete a medical examination. This is a contract that allows drivers to work until age 66.  The collective agreement does not entitle any luas driver to a second or subsequent fixed term contract. The Complainant in this case reached the age of 65 in 2022 and he received a one year fixed term contract in accordance with the collective agreement. The Complainant  requested but was refused a second fixed term contract.

The Respondent submitted that a collective agreement was reached in March 2020 wherein the agreed position was that the respondent would maintain its retirement age of 65 years for luas tram drivers. However tram drivers who reached the retirement age of 65 would be offered a one year fixed term contract of employment with affect from the 65th birthday provided they passed a medical examination.

The Respondent submitted that the decision of the Labour Court in Chrzanowski -v- Transdev Light Rail Ltd EDA established that the retirement age of 65 for luas drivers is objectively justified, the offering of a fixed term contract was objectively justified and the refusal of a second fixed term contract (and subsequent contracts) to the Complainant was objectively justified.

In the circumstances of this matter, I have carefully listened to the evidenced tendered in in the course of this hearing by both parties.

An employer that operates a retirement age is obliged to objectively justify such a retirement age.  The obligation arises from section 34(4) of the Employment Equality Act, 1998, which (as amended) provides as follows:

(4) Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees if— 

(a) it is objectively and reasonably justified by a legitimate aim, and 

(b) the means of achieving that aim are appropriate and necessary.

The Labour Court considered the meaning of Section 34(4) of the Act and noted that in the light of the principles set out in the Palacios de la Villa v Cortefiel Servicios SA Case C-411/05 it was clear and settled law that it had to apply the provisions of Article 6 of the Directive.  In the Palacios de la Villa case, the Court of Justice held that the retirement age in issue in the main proceedings was lawful where, in accordance with Article 6 of the Directive: -

“The measure, although based on age, is objectively and reasonably justified in the context of national law by a legitimate aim relating to employment policy and the labour market, and the means put in place to achieve that aim of public interest do not appear to be inappropriate and unnecessary for the purpose.”

The Court then considered whether the imposition of a retirement age on the complainant who was a tram driver was justifiable as a genuine and determining occupational requirement under Article 4(1) of the Directive.  The complainant as a tram driver was a safety critical employee governed by the Railway Safety Act 2005 and the respondent’s retirement policy had been set to take into account the safety related nature of its operations. The Court considered the medical opinion provided by the respondent’s occupational medical advisor and the provisions of the Railway Safety Act 2005. 

Having considered the above the Court accepted that to impose an upper limit on the retention of tram drivers in order to protect the health and safety of drivers, passengers and the general public was reasonable in the circumstances and could constitute genuine and determining occupational treatment and was legitimate and proportionate.

The finding of the Court was:

“The Court finds that the respondent has set out reasonable grounds that objectively justify a retirement age of 65 for tram drivers (including the complainant) who are classified as safety critical employees, in the interest of the safety of drivers, passengers and the public.”

I have carefully considered the submissions from both parties and in consideration of the above, and I am satisfied the retirement age is objectively justified within the meaning of the Act of 1998 and Directive 2000/78/EC and accordingly it follows the decision of the Respondent to decline the Complainant a second fixed term contract was objectively justified.

I find that the Complaint (CA-00052397-001) made pursuant to Section 77 of the Employment Equality Act, 1988, is not well founded.