Age restriction ruled as 'prima facie discriminatory'
After he took early retirement, a London, Ont., Greyhound bus driver wanted to continue working summers only.
John Massecar had worked at the company since 1975 and took an early retirement package in 2010. As part of a letter of understanding #4 (LOU) attached to the collective agreement, drivers had the option of bidding for summer routes “until attaining the age of 65.”
Because a lot of full-time drivers preferred to take vacations during summer months — which was also a busy time for the company — Greyhound instituted a policy whereby early-retired drivers could drive during summers only.
Massecar exercised his option to “return to a driving position with full seniority at retirement date in the division from which (the driver) retired, for the summer bid only each year” in the summers of 2011, 2012 and 2013.
But when he again applied in 2014, Massecar’s request was denied because he would have turned 65 in June.
The union, Amalgamated Transit Union Local 1415, grieved the decision and argued it was a violation of Massecar’s human rights and therefore discriminatory with respect to his age.
Greyhound countered and said the company did not force Massecar to retire early. If he remained on the job full-time, he could have continued to work past age 65. It said that Massecar was still free to bid on summer shifts, but he could only do so without retaining his seniority.
When summer routes were offered to workers, attractive options existed for those with seniority — such as those who retired early like Massecar.
Arbitrator Lyle Kanee upheld the grievance and ordered Massecar to receive damages for being refused work during the summers of 2014, 2015 and 2016.
“Greyhound did not assert that the age restriction was a bona fide occupational requirement. Therefore, in the absence of any statutory defences, I declare that the age restriction in LOU #4 violates the (Canadian Human Rights) Act and is of no effect. Massecar was entitled to participate in the summer bids after he reached the age of 65 with his full seniority,” said Kanee.
“LOU #4 has the effect of withholding or limiting access to opportunities from retired operators who are 65 years of age or older that retired operators under the age of 65 have available to them. The distinction is made strictly on the basis of age. The early retirees are employed as seasonal operators and their employment is terminated when they reach the age of 65. Accordingly, the age restriction contained in LOU #4 is prima facie discriminatory,” said Kanee.
The company did have an argument to offer Massecar work only during summer months — as per the LOU — but it could only go so far in its management rights to restrict his workload.
“From a strictly contractual perspective, I am sympathetic to the arguments of Greyhound. Massecar was not forced to take early retirement. If he wished to continue to work full-time past the age of 65, Greyhound would have let him,” said Kanee.
“Seniority is of fundamental importance in this workplace. LOU #4 bestows a valuable benefit on early retirees by permitting them to exercise seniority earned to the date of their retirement on future summer bids. It is discriminatory to strip that benefit away from early retirees strictly because they have reached the age of 65,” he said.
Reference: Greyhound Canada Transportation and Amalgamated Transit Union, Local 1415. Lyle Kanee — arbitrator. Michael Ford for the employer. John McLuckie for the employee. April 24, 2017.
