EDA243

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00028808 (CA-00038501-001).

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 27 June 2023. A Labour Court hearing took place on 15 November 2023.  The following is the Court's Decision.

DETERMINATION:

Background to the Appeal

This is an appeal by Mr Peter Doody (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00028808, dated 15 June 2023) under the Employment Equality Act 1998 (‘the Act’). Notice of Appeal was received in the Court on 27 June 2023. The Court heard the appeal in Dublin on 15 November 2023.

The Adjudication Officer determined that the Complainant was estopped from proceeding with his claim of discriminatory dismissal on the age ground against his former employer, Transdev Dublin Light Rail Limited (‘the Respondent’) by virtue of the doctrine of res judicata in rem, the Labour Court having previously determined (in ADE/16/52 Transdev Light Rail Limited v Michael Chrzanowski) that the Respondent’s policy of compulsory retirement for tram drivers at age 65 is objectively justified.

Summary of the Facts

The Complainant commenced employment with the Respondent as a tram driver on 12 April 2010. The Respondent applies a mandatory retirement age of sixty-five for tram drivers. This was reflected in the Complainant’s contract of employment which provided: “This contract will naturally expire on your 65th birthday, which is deemed by the company to be the normal retirement date.” The Complainant was, accordingly, compelled to retire from his employment on reaching his 65th birthday on 21 January 2020. The Complainant had opted not to join the Respondent’s occupational pension scheme. The Complainant referred his initiating complainant of age discrimination under the Act to the Workplace Relations Commission on 3 July 2020.

As recorded by the Adjudication Officer, the Complainant’s claim arose from events that occurred after the date of his retirement. In or about that time, discussions were ongoing between the Respondent and the Trade Union that represents tram drivers wherein the latter was seeking an increase in the retirement age for tram drivers. An agreement was concluded between the Trade Union and the Respondent on 27 March 2020 which confirmed that the retirement age would remain at 65 but that subject to meeting certain conditions, a tram driver who retired at age 65 would be offered a one-year fixed-term contract of employment. The principal conditions that applied were that a driver seeking such a fixed-term contract would have to apply for it six months before their retirement date and they would have to pass a medical examination.

Submissions

It is submitted on behalf of the Respondent that the Complainant is estopped by virtue of the doctrine of res judicata in rem from seeking to challenge his compulsory retirement at age 65 having regard to this Court’s earlier determination in Transdev Light Rail Limited v Michael Chrzanowski ADE/16/52, that the retirement age applied by the Respondent to tram drivers is objectively justified by reference to Irish and EU law.

The Complainant disputes the Respondent’s position and submits that the doctrine is not applicable to the Court’s determination in Chrzanowski.

The Law

The following summary from Halsbury's Law of England 4th ed. volume 16 paragraph 1530 was adopted as an accurate summary of the law applying in Ireland 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."

The limitation on the res judicata estoppel referred to in the final sentence of the foregoing paragraph ("in a second action between the same parties and their privies") does not apply in the case of a judgment in rem. Costello J identified the distinction between a judgment in rem and a judgment in personam 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."

McCracken J in Abrahamson v Law Society of Ireland [1996] 1 IR 403 summarised the effect of a decision in rem:

"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."

Discussion and Decision

The principle of res judicata is necessary to protect parties from repeated litigation in respect of matters that have already been decided by the courts. In the absence of such a principle, there is a risk that parties would be subject to repeated litigation in relation to the same issues and the fundamental principle of legal certainty would thereby be undermined.

Having carefully considered the Parties’ comprehensive submissions, the Court finds that its earlier determination in Chrzanowski in relation to the Respondent’s mandatory retirement age was a determination in rem as the Court decided in that case that the retirement age for all tram drivers employed by the Respondent was 65 and that that retirement age as applied to tram drivers in general employed by the Respondent was objectively justified.

It follows that the Complainant herein is estopped by application of the doctrine of res judicata in rem from seeking to challenge his compulsory retirement by the Respondent, having reached his sixty-fifth birthday on the date of that retirement.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
SOC	______________________
12 January 2024	Deputy Chairman