Judge slams Air NZ over its 'mindset'

By MATHEW DEARNALEY

Air New Zealand has been accused by the Employment Court of harbouring a "mind-set" in breach of legislation outlawing age discrimination.

Judge Graeme Colgan took exception to the wording of a letter the airline sent to jumbo-jet captain Sid Rush, purporting to terminate his employment "on the ground of retirement" after almost 37 years' service.

"Even allowing for the fact that the people involved were probably neither lawyers nor employment law or human resources professionals, 'retirement' is not a generally recognised ground of dismissal," the judge pointed out in a decision.

It tended to "point to a mind-set on the part of the airline" that if Captain Rush did not agree to retire on turning 60, this would be the ground for dismissing him unless he was appointed to another pilot position within the period of an inadequate termination notice.

Judge Colgan said it was the second such case brought to the court on behalf of a 60-year-old Air New Zealand pilot. The airline was on notice from the proceedings in 2000 that it was required to do more to find other positions for them.

Mr Rush, a pilot for Air New Zealand and its National Airways Corporation predecessor since 1965, graduated to the airline's most senior line flying position as a Boeing 747-400 captain.

Banned by United States law from captaining aircraft over that country once he turned 60 in November 2001, Mr Rush applied for a transfer to first-officer duties.

Although our Human Rights Act makes it illegal to force workers to retire because of their age, exceptions are allowed if being of a certain age is a genuine occupational qualification, whether for safety or any other reason.

Air New Zealand's 747 fleet manager, Captain Mark Simich, claimed Mr Rush told him he would retire if a first-officer position did not become available - but the veteran pilot denied that.

When Mr Rush sent Mr Simich a letter insisting he did not want to retire, the manager wrote back wishing him an enjoyable summer holiday but did not acknowledge his protest.

Mr Rush challenged his dismissal. The Employment Relations Authority criticised Air New Zealand for not discussing alternatives to retirement and for causing great distress by treating such a long-serving employee in a "cavalier manner".

Ruling that he was not redundant, and that his compulsory retirement breached the Human Rights Act, the authority awarded him compensation of $35,000.

On appeal to the court, the airline succeeded in having that award reduced to $15,000.

But it ended up worse off after Judge Colgan ruled its failure to give Mr Rush three months' notice of dismissal entitled him to lost wages for at least that period, or more if appropriate vacancies for other pilots' positions arose in the interim.

"That is likely to be more than $50,000 before tax, given Mr Rush's senior status," the judge said, directing the parties to try to reach an agreement on the amount.

But Airline Pilots' Association spokesman Garth McGearty said three months' lost wages for a 747 captain was closer to $80,000 and that there had been vacancies for pilots.

Judge Colgan said the airline "sat on its hands" while on notice from new good-faith legal requirements as well as the earlier court case that it was required to do more for 60-year-old pilots.

Mr Rush, who lives in Kerikeri, was reluctant to discuss his case with the Herald, apart from saying that the way the airline had treated him after his long service "left a very sour taste".

Air New Zealand spokeswoman Rosie Paul did not respond directly to the judge's "mind-set" comment, saying only that the airline had no fixed retirement age but had to be mindful of and manage obligations created by the United States regulations.