Landmark age discrimination decision

Photo/Paul Estcourt

In perhaps the most significant decision in a discrimination claim in New Zealand's employment law history, the Supreme Court has upheld an appeal by Mr David McAlister, a pilot and flight instructor employed by Air New Zealand, and found that Air New Zealand's policy failed to afford him the same conditions of work as other employees, on account of his age.

However, that does not amount to a finding of discrimination, as there is a defence where being of a particular age is a genuine occupational qualification. Whether this defence applies in this case is still to be determined.

The case arose because Air New Zealand demoted Mr McAlister to first officer when he turned 60, as he could no longer fly as pilot-in-command of a Boeing 747-400 in US airspace. The US, and certain other countries (not including New Zealand) had adopted a standard of the International Civil Aviation Organisation (ICAO) prohibiting a pilot from holding the position of pilot-in-command if he or she had turned 60.

Consequently, Air New Zealand had adopted a policy that no pilot who had attained the age of 60 could hold a pilot-in-command position on 747s or 767s while those aircraft predominantly operated through countries that had adopted the ICAO standard.

The Human Rights Act and the Employment Relations Act both prohibit discrimination on the ground of age in relation to employment, by specifying certain types of conduct that will be discriminatory if done on the ground of age (or another prohibited ground). These include dismissal, detrimental treatment, and refusal to provide the same terms of employment or conditions of work as the employer does for other employees.

There is a defence where being of a particular age is a genuine occupational qualification (although this defence is not available in all of the above scenarios, a situation which caused a great deal of debate in this case, and resulted in dissent even among the Supreme Court judges).

Mr McAlister's age discrimination claim succeeded in the Employment Court but was rejected in the Court of Appeal. There was a lot of discussion in all three courts about who was the correct "comparator" - in other words, who do you compare Mr McAlister to, in order to decide whether Air New Zealand discriminated?

The Supreme Court agreed with the Employment Court's narrower view that it should be pilots of similar seniority or experience aged less than 60, rather than the Court of Appeal's view that it should be pilots debarred from acting as pilot-in-command in the US for any reason.

This resulted in the finding that age was the reason for pilots such as Mr McAlister being unable to fly as pilot-in-command (rather than simple non-compliance with regulatory requirements, which could be age or could be failing to maintain a visa). The Court of Appeal's decision essentially said that Air New Zealand's need to comply with foreign law was the reason for Mr McAlister's treatment, rather than age.

That, however, was not the end of the story, given the defence where being of a particular age is a genuine occupational qualification for that position. However, this exception does not apply if the employer can adjust its activities so that someone else can carry out the duties in question (provided this is not an unreasonable disruption). In that context, the decision states that only 30 per cent of an instructor's time is spent on "line pilot duties".

The Supreme Court said that Air New Zealand has to show that it could not reasonably adjust Mr McAlister's duties to enable him to concentrate on other duties while other pilots carried out the pilot-in-command functions on the affected flights. It therefore sent the case back to the Employment Court for this question to be determined on the evidence.

Some will question whether Air New Zealand should have to defend itself against a claim like this when the reason for its policy is the need to comply with the law of a foreign country. However, the "genuine occupational qualification" defence is still available, and the alternative view is that it should have to show that there is no option other than to apply the age-related limitation to Mr McAlister.

 

Greg Cain

 

 

Photo/Paul Estcourt