Complainant

Respondent

Parties

Peter  Doody

Transdev Dublin Light Rail Limited

Representatives

Barnaba Dorda SIPTU

Loughlin Deegan Byrne Wallace Solicitors

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-00038501-001

03/07/2020

The complainant was employed as a tram driver by the respondent.  He commenced employment on 12 April 2010.  The complainant was required to retire upon reaching his 65th birthday on 21 January 2020.  The complainant asserts that the termination of his employment was directly connected to his age and, as such, amounts to direct discrimination.  The complaint under section 77 of the Employment Equality Act 1998 was received by the Workplace Relations Commission on 03 July 2020.

The respondent asserts this complaint relates to the lawful implementation of the retirement age for tram drivers.  Further, the respondent asserts the Labour Court has already determined that the respondent’s retirement age for tram drivers is 65 and this retirement age is objectively justified within the meaning of the Act of 1998 and Directive 2000/78/EC.   Further, these issues have been definitively determined by a court of competent jurisdiction, (namely the Labour Court) the complainant is estopped by the doctrine of res judicata from re-litigating the same issues. 

This complaint relates to the lawful implementation by the respondent of the complainant’s retirement age.  The Labour Court has already determined that

(a)    The respondent’s retirement age for tram drivers is 65 years and

(b)    This retirement age is objectively justified within the meaning of the Act of 1998 and Directive 2000/78/EC.

These issues have been definitively determined by a court of competent jurisdiction (namely the Labour Court).  The complainant is estopped by the doctrine of res judicata from re-litigating the same issues.

Retirement Age

The complainant’s employment with the respondent commenced on 12 April 2010.

The complainant’s contract of employment provides, among other provisions, as follows:

This contract will naturally expire on your 65th birthday, which is deemed by the company to be the normal retirement date.

Further to the provisions of the contract of employment the complainant was required to retire with effect from his 65th birthday on 21 January 2020.

This complaint primarily arises from events that occurred after the date of the complainant’s retirement.

The respondent’s recognised trade union had sought to increase the retirement age for tram drivers.  The respondent had considerable reservations about increasing the retirement age for tram drivers because there were compelling justifications, based on health and safety reasons, workforce planning reasons and other reasons, to have a retirement age of 65 for tram drivers. 

Over a period of time there were discussions between the trade union and the respondent on the issue of the retirement age for tram drivers.  During the discussions the occupational health advisor, health and safety experts and other relevant stakeholders were consulted.  An agreement was concluded on 27 March 2020.

The main terms of the agreement were that the respondent would maintain its retirement age of 65 years for tram drivers.  However, subject to passing a medical examination, tram drivers who reach the retirement age of 65 would be offered a one year fixed-term contract of employment, with effect from their 65th birthday.  Tram drivers were required to apply for such a fixed-term contract at least six months before their normal retirement age of 65.  Applications were required six months before the normal retirement age for workforce planning reasons.

This agreement has been faithfully implemented by the respondent in respect of tram drivers who reached the age of 65 years after 27 March 2020.  The complainant had already retired before the agreement with the union was reached.  It was expressly agreed that there would be no retrospective application of the agreement.

Background

The respondent operates Dublin’s light rail system, Luas.  The respondent operates a “railway” within the meaning of the Railway Safety Act 2005 (as amended).  The Act of 2005 imposes a broad range of obligations on the operators of railways and their employees.  There are obligations on, and in respect of, employees and other persons who are “safety critical workers” as defined in Part 9 of the Act of 2005.  Tram drivers are “safety critical workers” as defined.  Tram drivers are responsible for their own safety and the safety of passengers who travel in their trams.  They also have responsibilities to other people, such as, other employees, pedestrians and road users.  In addition to the obligations imposed by the Act of 2005 the respondent has statutory duties in respect of health and safety, under the Safety, Health and Welfare at Work Act, 2005 as well as duties in common law and contract.

The respondent ensures that safety critical workers are fully capable of carrying out their functions by a range of measures, such as pre-employment medical screening, periodic medical examinations and regular checks, such as unannounced drug and alcohol screening, in addition to complying with legislation.  The respondent also protects the health and safety of its employees and others by operating a retirement age from tram drivers.

The respondent has concerns, supported by medical opinion, that the ability to safely operate a tram may diminish with advancing age.  This observation is supported by detailed medical opinion received by the respondent from its occupational health advisers over the period from 2010 to 2020.

The respondent asserts that in addition to health and safety concerns in respect of tram drivers it is entitled to have regard to matters relating to workforce planning in the establishment and operation of its retirement age.  The operation of the respondent’s retirement age for tram drivers achieves the justified objective of achieving equitable distribution of work opportunities between generations.   Tram drivers who retire are replaced by younger tram drivers.  The respondent also operates a collectively agreed pension scheme that provides for retirement of employees (including tram drivers) at their 65th birthday.

Res Judicata Argument

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.

(Section 3 deals with occupational benefit schemes and is not relevant to this complaint)

The respondent asserts that the question of whether the respondent’s retirement age of 65 for tram drivers is objectively justified was definitively determined by the Labour Court in the case of Chrzanowski v Transdev Light Rail Limited EDA1632.

(It is noted that the provisions of section 34(4) considered by the Labour Court in the Chrzanowski case were the provisions prior to the that sections amendment by the Equality (Miscellaneous Provisions) Act 2015.  Prior to its amendment, section 34(4) did not provide an express requirement that an employer must objectively justify any retirement age.  However, the Labour Court in the Chrzanowski case held that to avail of section 34(4) an employer must be able to objectively justify its retirement age.)

The respondent asserts that the decision of the Labour Court in the Chrzanowski case was a decision in rem that decided the objective justification of the respondent’s retirement age for tram drivers.  The doctrine of res judicata creates an issue estoppel that prevents the complainant from re-litigating this issue in subsequent litigation.

The respondent cites the decision of Costello J in D v C [1984] ILRM 173 in which the court quoted the following description of ‘issue estoppel’,from Halsbury’s Law of England, 4th ed. Volume 16, as a summary of the law applying in Ireland:

“A party is precluded from contending the contrary of any precise point which having once been distinctly put in issue has been solemnly and with certainty determined against him.  Even if the object of the first and second actions are different a finding on a matter which came directly (not collaterally or incidentally) in issue in the first action, provided it is embodied in a judicial decision this is final, is conclusive in a second action between the same parties and their privies.”

The limitation in the last line above “in a second action between the same parties and their privies” does not apply in the case of a judgement in rem.  Costello J drew attention to the distinction between a judgment in rem and a judgment in personam in the following paragraph:

“A judgment in rem is a Judgment of a Court of competent jurisdiction determining the status of a person or thing or the disposition of a thing, as distinct from a particular interest in it, or a party to the litigation.  A judgement in personam (or inter partes) includes all other judgements which are not judgements in rem, are judgments which determine the rights of parties between one another to or in the matter in suit and so not affect the status of any person or thing or make any disposition of property.”

The respondent also cited the decision of McCracken J in Abrahamson v Law Society of Ireland [1996] 1 IR 403 2 [ILRM] 481 in which the effect of a decision in rem was summarised as follows:

A decision in rem is one which determines for once and for all the status of a particular res or thing.  It is not a determination which depends upon the relationship between the parties to the action.”

The respondent submits that the decision of the Labour Court in the Chrzanowski case was a decision in rem.  The Labour Court decided that:

(a)    The retirement age for tram drivers (in general, i.e., not only the retirement age applicable to Mr Chrzanowski) was 65, and

(b)    The retirement age for tram drivers (in general, i.e., not only the retirement age applicable to Mr Chrzanowski) is objectively justified.

Further to the clearly established principles of res judicata, the complainant is estopped from contending to the contrary of the Labour Court’s decision on these issues.

The complainant was employed by the respondent as a tram driver.  He commenced his employment on 12 April 2010.  The complainant had his employment terminated by the respondent upon reaching his 65th birthday on 21 January 2020.

The complainant asserts that the termination of his employment was a decision directly connected to his age and, as such, amounts to direct discrimination.

Background

The complainant asserts that during his employment his Union representatives raised the issue of retirement with the respondent on several occasions.  The complainant had an exemplary record and carried out his duties professionally and diligently throughout his employment.  Furthermore, the complainant was in excellent health and had no medical issues with his cognitive abilities.  His medical condition was checked on a frequent basis preceding his dismissal. 

The complainant intended to continue working past his 65th birthday.  SIPTU formally wrote to the respondent on 17th June 2019 and advised it of the complainant’s intention to continue working.

It is noted that the retirement age in the contract of employment was set at the employee’s 65th birthday while the employee handbook states the retirement will be on the employee’s 66th birthday.  It is the Union’s understanding that the respondent claims the latter to by a typo, however, this has not changed since the introduction of the handbook in 2007.

Retirement Age

The complainant asserts that the respondent failed to objectively justify relying on the discriminatory clause in his contract of employment as required by section 34(4) of the Act.  The complainant cited several cases concerning the issue of objectively justifying a contractual and/or compulsory retirement age – McPhillips v ISS Facilities Services Ltd DEC-E2013-042, Nolan v Quality Hotel Oranmore DEC-E2012-110 and Sweeny v Aer Lingus Teo DEC-E2013-135.

The complainant cited the Code of Practice on Longer Working S.I.600/2017 the purpose of which is to set out the guidance for employers, employees and their representatives, best principles and practices to follow during engagement between the parties prior to retirement.  The Union, acting on the complainant’s behalf, wrote to the respondent on 17 June 2019 to request a meeting to discuss the complainant’s wish to continue working beyond his 65th birthday.  No meeting took place until after the complainant’s employment was terminated.  Therefore, it is contended that there was no meaningful engagement as intended by the guidance in the Code of Practice.

The complainant submits that he had established a prima facie case of direct discrimination, therefore the burden of proof shifts to the respondent in accordance with section 85A of the Employment Equality Act.

Res Judicata Issue

The respondent has raised a preliminary issue concerning res judicata principles.  It is the complainant’s understanding that the respondent contends that the matter between the parties has already been judged in the case Chrzanowski v Transdev Light Rail Ltd EDA 1632 and therefore, the WRC should reject the complainant’s complaint.

The respondent has relied on two cases, D v C [1984] ILRM 173 and Abrahamson v Law Society of Ireland 1 IR 403 2 [ILRM] 481.  The case put forward by the respondent, based on the D v C decision is that the status of the respondent’s fixed retirement age applied to any tram driver in their employment as well as the status of any dismissal of such tram driver linked to fixed retirement age.  The second case, Abrahamson v Law Society of Ireland, refers to a decision in rem, as “A decision in rem is one which determines once and for all the status of a particular res or thing.  It is not a determination which depends upon the relationship between the parties to the action.”  It is the respondent’s position that the WRC should accept a decision applicable to facts and/or circumstances of 2014 and consequently deny the complainant his right to a hearing in which the WRC could investigate the particular circumstances and facts of his case.

The complainant contends that the Labour Court in its decision in the Chrzanowski v Transdev Light Rail Ltd case stated that “The Court accordingly determines that the Respondent acted in compliance with Section 34(4) of the Act, the compulsory retirement age of 65 applied to the Complainant was necessary reasonable and proportionate and accordingly amounted to objective justification for that maximum retirement age. (…)”  Thus, it is submitted that the Court’s decision is a decision res judicata in personam, not a decision in rem.  The Labour Court assessed the application of the compulsory retirement age of 65 to Mr Chrzanowski at a given point in time, given specific circumstances in 2014 and issued their decision in relation to a specific person.

Further, given the requirements of section 34 (4) of the Act, the respondent should have objectively justified the aim of maintaining the fixed retirement age at 65 years prior to dismissing the complainant in January 2020.  The respondent should have verified whether the means of achieving the aims were proportionate and necessary in 2020.  The respondent is currently relying on the objective justification from 2014.  Thus, res judicata in rem in such circumstances does not apply.

The complainant contends that there are exceptions to the res judicata principle, that is special circumstances in each individual case.  Thus, the res judicata in personam or in rem, shall not be applied automatically.

The complainant contends that the res judicata principle requires the parties to litigation to bring all aspects of their case to the court or forum considering their case so that all matters can be decided.  The complainant cited the case of Henderson v Henderson (1843) 3 Hare 100, 67 ER 313as setting out the principle.  The complainant contends that he was not a party to Mr Chrzanowski’s case and the circumstances he wishes to rely upon were not in existence in 2014.

The complainant contends that to justify fixing a compulsory retirement age an employer needs to objectively justify a legitimate aim and to show that the means to achieve such aim are necessary and appropriate.  These factors are not immune to change.  The means to achieve the legitimate aim might be necessary in 2014, but not so much in 2020.  Circumstances can change over time.  New circumstances were not brought because Mr Chrzanowski failed to put them forward, but because they did not exist at the time in 2014.  For example, the following changes have occurred since 2014:

(a)    The Employment Equality Act was changed, and the meaning of section 34 (4) was updated to comply with European Directives, by the Equality (Miscellaneous Provisions) Act, 2015.

(b)    The State pension age increased to 66,

(c)     The Code of Practice on Longer Working, S.I. 600/2017 was introduced.

(d)    The employer should have taken the above new sets of circumstances into consideration over the past 6 years in order to ensure that the retirement age in existence continued to be objectively justified when dismissing the complainant in 2020.

In support of the complainant’s position the following cases were cited: Cunningham v Intel Ireland [2013] IEHC 207, G v The Department of Social Protection [2015] IEHC 419, McCauley v McDermott {1997} 2 ILRM 486.  The complainant contends he should not be denied a hearing of his case by the doctrine of res judicata.  The complainant further cited the case of Donnellan v MJELR & Ors [2008] IEHC 467 in the context of the ongoing changing nature of ‘objective justification of a legitimate aim’.

The complainant submits that, before dismissing the complainant in 2020, the respondent should have reviewed prudently the contractual clause in line with the new set of circumstances.  The respondent should have again assessed objective justification of a legitimate aim and verify whether means of achieving such aims are necessary and proportionate.

For all the above reasons, the respondent’s application should be rejected.

Preliminary Issue

The respondent submits that the complainant is estopped by the doctrine of res judicata from re-litigating the issue of the retirement age for tram drivers.  Therefore, the respondent has sought a decision on this preliminary issue as provided for in section 79 (3A) of the Employment Equality Act. 

(3A) If, in a case which is referred to the Director General of the Workplace Relations Commission under section 77, a question arises relating to the entitlement of any party to bring or contest proceedings under that section, including:

(a) whether the complainant has complied with the statutory requirements relating to such referrals,

(b) whether the discrimination or victimisation concerned occurred on or after 18 October 1999,

(c) whether the complainant is an employee, or

(d) any other related question of law or fact, the Director General of the Workplace Relations Commission may direct that the question be investigated as a preliminary issue and shall proceed accordingly.

The main issue in this complaint concerns the compulsory retirement of the complainant by the respondent when he reached his 65th birthday. 

The complainant’s contract of employment states “This contract will naturally expire on your 65th birthday, which is deemed by the company to be the normal retirement date.”  The respondent contends that it lawfully implemented the retirement age as the Labour Court has already determined that

(a)    The respondent’s retirement age for tram drivers is 65, and

(b)    This retirement age is objectively justified within the meaning of the Act of 1998 and Directive 2000/78/EC.

The respondent contends these issues have been definitively determined by a court of competent jurisdiction (namely the Labour Court) therefore the complainant is estopped by the doctrine of res judicata from re-litigating the same issues.

The complainant in reply contends that the decision of the Labour Court assessed the application of the compulsory retirement age of 65 to the previous complainant, Mr Chrzanowski, at a given point in time, given specific circumstances in 2014.  Acceptance of the respondent’s submission would deny the complainant a hearing and investigation of his own circumstances and the facts of his case.

The complainant further notes there are exceptions to the res judicata principle where special circumstances of individual cases may exist. 

Res Judicata

The respondent referring to the established principles of the doctrine of res judicata cited the following passage from Halsbury’s Law of England 4th ed. volume 16 para 1530 approved by Costello J in D v C [1984] ILRM 173.

“A party is precluded from contending the contrary of any precise point which having once been distinctly put in issue has been solemnly and with certainty determined against him.  Even if the object of the first and second actions are different a finding on a matter which came directly (not collaterally or incidentally) in issue in the first action, provided it is embodied in a judicial decision that is final, is conclusive in a second action between the same parties and their privies.”

Another description of the principles is found in Hogan, Morgan, Daly -   Administrative Law in Ireland 5th ed. 2019-chapter 21 para 113-114:

“The doctrine of res judicata in relation to the judgement of a court has been defined in the following manner by Holmes L.J. Irish Land Commission v Ryan [1900] 2 I.R. 565 at 584.

“A judgement not appealed from binds the parties and privies for all time by what appears on its face; and if it can be shown that, in the course of the action that resulted in the judgment, a certain definite material issue not set forth in the judgment itself was raised by the parties and determined judicially or by consent, it would be contrary to public policy to allow the same parties to re-agitate the same matter in subsequent legal proceedings”

The two aspects of res judicata are contained in this passage.  First, a “cause of action” estoppel precludes the same parties from relitigating an action which has been finally determined by a court of competent jurisdiction – this is res judicata “in its most essential form”. Secondly, an “issue estoppel” (or constructive res judicata) prevents the parties to the earlier proceedings litigating an essential feature - “a certain definite material issue” – of the earlier decision.  In addition, however, a judgement in rem binds not only the parties to the litigation, but conclusively determines the status of a particular res or thing.”

The difference between a judgment in rem and a judgment in personam was set out by Costello J in D v C [1984] ILRM 173 as follows:

“A judgment in rem is a judgment of a Court of competent jurisdiction determining the status of a person or thing or the disposition of a thing, as distinct from a particular interest in it, of a party to the litigation.  A judgment in personam (or inter partes) includes all other judgments which are not judgments in rem, are judgments which determine the rights of parties between one another to or in the matter in suit and do not affect the status of any person or thing or make any disposition of property.”

The respondent contends that the decision of the Labour Court in Chrzanowski v Transdev Light Rail Limited EDA 1632 is a decision in rem as the Court decided that:

(a)    The retirement age for tram drivers (not only Mr Chrzanowski) was 65, and

(b)    The retirement age from tram drivers is objectively justified.

I must decide if the respondent’s contention about the Chrzanowski case is accurate.

Mr Chrzanowski was a tram driver employed by Transdev Light Rail Limited, the respondent in the current case.  He complained that he was subjected to discriminatory treatment on the age ground when Transdev imposed a mandatory retirement age of 65 years. 

Objective Justification

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.”

Promotion of Workforce Planning and Access to Employment

The Court accepted that it was not unreasonable for employers to have a legitimate interest in workforce planning. The respondent had demonstrated how it conducted its workforce planning in the case of tram drivers.

The finding of the Court was:

“Taking account of the medical opinions advanced coupled with the workforce planning requirements and the collectively agreed pension scheme, the Court is satisfied that a compulsory retirement age of 65 for tram drivers was reasonable and appropriate in the circumstances.  Furthermore, it accepts that it constituted a legitimate aim of employment and labour market policy in order to prevent possible disputes concerning tram driver’s fitness to work beyond a certain age.”

The determination of the Court in the Chrzanowski case was that the respondent “acted in compliance with Section 34(4) of the Act, the compulsory retirement age of 65 applied to the complainant was necessary reasonable and proportionate and accordingly amounted to objective justification for that maximum retirement age.”

Complainant’s Position

The complainant cited the decision in Henderson v Henderson (1843) 3 Hare 100 and notes that parties to litigation are required to bring all the aspects of their case to the court or forum considering their case so that all matters can be decided.  The complainant asserts that he was not a party to the Chrzanowski case and circumstances he wishes to rely on were not in existence in 2014.

The complainant also cited decisions in Cunningham v Intel Ireland [2013] IEHC 207, ADJ-00009960, and McCauley v McDermott [1997] 2 ILRM 486 to support the contention that special circumstances and or circumstances that did not exist in 2014 should not be denied a hearing by the doctrine of res judicata.

The complainant contends that the principle of res judicata in rem, as defined by Costello J in the D v C case relates to the status of a thing.  The status of a thing may be immune to future circumstances but in this case the decision of the Labour Court in the Chrzanowski case has had an ongoing impact on tram drivers who were not parties to that hearing.  The status of a fixed compulsory retirement age, given its nature, over time, might be vulnerable to change due to new circumstances.  The means to achieve a legitimate aim might be necessary and appropriate in 2014 but not so in 2020.  The complainant contends that a previously objectively justified retirement age in 2014 may not be objectively justified in 2020.

The complainant submits the following issues were not in existence in 2014 and therefore were not put forward for consideration at that time:

(a)    The Employment Equality Act, Section 34(4) was updated in 2016 to take comply with the European Directive.

(b)    The State pension age increased to 66 in 2018 and further changes were planned.

(c)     The Code of Practice on Longer Working (S.I.600/2017) was introduced.

The complainant submits that the respondent should have taken the above into consideration in order to ensure that the retirement age in existence continued to be objectively justified when dismissing the complainant in 2020.

The complainant cited the decision of McKechnie J in Donnellan v MJELR & Ors [2008] IEHC 467 and contends that before dismissing the complainant it should have reviewed the contractual clause in line with the new circumstances.

Chrzanowski

I have carefully considered the arguments put forward by the parties and I am satisfied that the Labour Court found that the retirement age of 65 years for tram driver employees of the respondent was objectively justified by a legitimate aim and the means of achieving that aim were appropriate and necessary.

“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.”

“Taking account of the medical opinions advanced coupled with the workforce planning requirements and the collectively agreed pension scheme, the Court is satisfied that a compulsory retirement age of 65 for tram drivers was reasonable and appropriate in the circumstances.  Furthermore, it accepts that it constituted a legitimate aim of employment and labour market policy in order to prevent possible disputes concerning tram driver’s fitness to work beyond a certain age.”

I am satisfied that the matter in issue in the instant case is the same issue that was definitively determined in the Chrzanowski case, that is compulsory retirement at age 65.  The Labour Court having considered in detail the medical evidence presented by the respondent and the classification of tram drivers as safety critical employees arrived at a decision on the retirement age for tram drivers employed by the respondent, not just Mr Chrzanowski.

Issues Since 2014

I note that while Mr Chrzanowski retired in 2014 the decision of the Labour Court EDA 1632 was issued on 29 November 2016. 

Section 34(4) of the Act was amended by the Equality (Miscellaneous Provisions) Act 2015, effective 01 January 2016, now 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 complainant’s contention that this amendment is a new issue is not correct as the Labour Court accepted that it must apply the provisions of Article 6 of the Directive and therefore considered if the retirement age was objectively and reasonably justified by a legitimate aim and if the means of achieving that aim were appropriate and necessary.

The State pension age increased to 66 on 01 January 2014 and therefore was in place at the time of the decision in the Chrzanowski case.  While further changes were planned the State pension age has not increased beyond 66.  I note the respondent stated that the retirement age for tram drivers has not changed and remains at 65.  The agreement reached with the union, after the complainant retired, did not change the contractual retirement age for tram drivers.

The Code of Practice on Longer Working S.I. 600/2017 was introduced under the section 42 of the Industrial Relations Act, 1990.  The main purpose of the Code is to set out, for the guidance of employers, employees and their representative, best principles and practices to follow during the engagement between employers and employees in the run up to retirement.  The Code provides guidance and sets out best practice in relation to retirement but does not take precedence over decisions of the Labour Court.

The cases cited by the complainant are mainly decisions in personam which is entirely different to a decision in rem.  The decision in Henderson v Henderson deals with litigation between the same parties.  Decisions in rem bind not only the parties to the litigation but conclusively determines the status of a particular res or thing.  The Labour Court in Chrzanowski clearly found “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” emphasis added.  This decision therefore applied to all tram driver employees of the respondent.

Conclusion

The preliminary issue I must decide is whether the complainant is estopped by the doctrine of res judicata for re-litigating the issue of the compulsory retirement age for tram drivers as contained in the complainant’s contract of employment.

I have carefully considered the submissions from both parties, and I am satisfied that the Labour Court in Chrzanowski v Transdev Light Rail Limited EDA 1632 definitively determined that

(a)    the respondent’s retirement age for tram drivers is 65 and

(b)    this retirement age is objectively justified within the meaning of the Act of 1998 and Directive 2000/78/EC

I am satisfied that the Court’s decision is a decision in rem applying to the respondent’s tram drivers and not only to Mr Chrzanowski.  Therefore, I determine the complainant is estopped from contending to the contrary of the Labour Court’s decisions on the above issues.

It is rare that an application for a preliminary decision under section 79 (3A) is made and the normal practice is to consider preliminary and substantive issues in the one decision but I acknowledge that the issue raised in the instant case is the same issue determined by the Labour Court in 2016.  The respondent’s retirement age for tram drivers continues to be 65 years.

CA-00038501-001

Decision under section 79 (3A) of the Employment Equality Act.

The preliminary issue I must decide is whether the complainant is estopped by the doctrine of res judicata for re-litigating the issue of the compulsory retirement age for tram drivers as contained in the complainant’s contract of employment.

I have carefully considered the submissions from both parties, and I am satisfied that the Labour Court in Chrzanowski v Transdev Light Rail Limited EDA 1632 definitively determined that

(a)    the respondent’s retirement age for tram drivers is 65 and

(b)    this retirement age is objectively justified within the meaning of the Act of 1998 and Directive 2000/78/EC

I am satisfied that the Court’s decision is a decision in rem applying to the respondent’s tram drivers and not only to Mr Chrzanowski.  Therefore, I determine the complainant is estopped from contending to the contrary of the Labour Court’s decisions on the above issues.

Preliminary Decision

Section 79 (3A) Employment Equality Act

Retirement Age

Contractual Retirement Age 65