Appeal Court rules Cathay Pacific pilots to abide by Hong Kong contract and retire at age 55

The two pilots are shocked at the decision that will enforce them to leave their jobs. Photo / Supplied

Two Kiwi pilots are getting their wings clipped after a court decision which could force them to retire early due to their age.

The Employment Court ruled in favour of Cathay Pacific senior pilots David Brown and Glen Sycamore two years ago when they claimed being forced to retire at age 55 was age discrimination.

But a Hong Kong subsidiary of the airline, New Zealand Basing Ltd, which the two pilots have their contract with, appealed the decision and won, with the New Zealand Court of Appeal decision released on Friday.

The pilots have been ordered to pay costs to NZBL for the appeal and could now be forced into retirement unless further action is taken. Both are still currently employed by the airline and both turned 55 last year.

The pilots' lawyer, Garry Pollak, is shocked with the outcome. He said this was a precedent-setting case with significant ramifications for future human rights lawsuits.

"I've had two sleepless nights over the weekend," he said.

"It really is an unbelievable overturning of the Employment Court decision."

Cathay Pacific said yesterday in a statement that it respected the Appeal Court's judgment.

"We will now consider the next steps in consultation with the pilots this relates to, and the union."

Pollak explained that the Court of Appeal ruling in favour of the airline would make it easier for foreign corporations employing Kiwis based in New Zealand to be subject to foreign jurisdictions.

The decision contained some controversial points, he said.

For instance, the report stated that age discrimination "is not an absolute value, as is confirmed by New Zealand's statutory framework, but is a flexible concept linked to and reflecting a range of fiscal, social and cultural factors".

"I don't think most people would agree with that," said Pollak. "Especially if they're about to lose their job based on their age."

Pollak is now looking at ways to protect the pilots' employment. They were considering an appeal.

No other airlines had chosen to discriminate based on age, he said.

"There are quite a number of significant issues, we're just digesting them at the moment."

NZBL offered Kiwi pilots, including Brown and Sycamore, the opportunity to transfer to a new employment agreement in 2014, which would see them paid at a lower pay scale but have their retirement age increased to 65.

However, if they did not transfer on to the new agreement, they would have no reduction in salary but would have to retire at 55.

Sycamore and Brown chose not to transfer to the new contract because they thought NZBL would soon increase the retirement age on their current contract and they were reluctant to lose the benefits under their existing contracts.

Brown is quoted in the report saying that he did not see why he should "bargain [his] salary in order to work longer".

In July, Fairfax reported how a senior pilot was effectively "culled" by Air New Zealand when they made the training prohibitively difficult.

In 2014, the International Civil Aviation Organisation ruled that pilots aged 65 and over couldn't fly international flights.

The man was forced to abandon flying Boeing 777 long-haul routes and took up an offer from Air New Zealand to retrain on the Airbus A320 for domestic routes. But the course was hard and there were no extensions for those who struggled.

"The daily [instructor] write-ups were such, I thought 'shit, they're going to shaft me on this', and they did. They refused to give me any further training.

"There was no other option but to resign. It's one hell of a way to end a career."

New Zealand and Australia have no mandatory retirement age and human rights legislation prohibits discrimination on the grounds of age.