Captain Garth McGearty had reached the most senior rank, captain of the Boeing 777, when the matter of his age become an issue. (File photo) Photo: 123rf
A pilot who claimed Air New Zealand discriminated against him because of his age has succeeded in a personal grievance claim against the airline.
Captain Garth McGearty took the claim against Air New Zealand to the Employment Court, after he was turned down by the Employment Relations Authority, alleging unjustified disadvantage and unlawful discrimination because of age.
The NZ Airline Pilots Association (NZALPA) was also involved because the issues for determination involved interpretation of the union's collective agreement.
McGearty had reached the most senior rank, as captain of the Boeing 777.
He turned 65 in July 2017.
When pilots reach that age, their options for international commercial flying are restricted by international law. They are not restricted in the same way in New Zealand.
The International Civil Aviation Organisation standard applies a "limitation of privileges of pilots who have attained their 60th birthday and curtailment of privileges of pilots who have attained their 65th birthday".
The Employment Court noted this had caused problems under New Zealand law, which prohibits age discrimination.
"Although New Zealand has filed a difference to the standard, it applies to territories which Air NZ's international fleets fly to, from, or through. The United States of America, for example, imposes both the Standard and age restrictions issued by the Federal Aviation Administration (FAA).
"This can create complexity for commercial flight operations and plans which require nominating alternate airports for emergency landings, as ARPs cannot fly through airspace where the Standard applies. The major exception to international flying for ARPs is to and from Australia, which has also filed a difference to the Standard. Some Pacific Islands have done so as well."
The court noted that when a pilot's career was affected by their age, the union collective agreement provided that they should be allowed to retire and claim annual leave as well as retirement leave, or transfer to an unaffected fleet and rank.
That would usually mean moving to the A320 fleet, with a reduction in base pay of $80,000 a year.
'Discussions were not easy'
Air New Zealand wrote to McGearty in 2016 asking what his intention was.
McGearty said that before he turned 65, he raised the issue verbally and at least by late 2017, he told the senior fleet manager he did not want to transfer.
He wrote in February 2018 that he did not think he needed to change.
Employment Court judge Kathryn Beck said McGearty considered that he had an in-depth understanding of the rostering system from an operational and contractual policy perspective.
He had several years on the international pilots rostering committee and had assisted on projects involving the development of new rostering systems. He believed he could continue to be rostered on the 777. There was accommodation made for other pilots who needed to avoid certain parts of the world, for example people with young families when the Zika virus was a concern.
While McGearty was on leave in March 2018, Air New Zealand advised that modelling results showed it would be possible in theory to accommodate some older pilots on the wide-body fleets but there would be an effect on other pilots.
Air NZ commenced a consultation process with NZALPA and the Federation of Air New Zealand Pilots with a view to attempting to agree the terms of a trial.
"It is fair to say that discussions were not easy," Beck noted.
"Air NZ says the age issue has created disharmony among pilots, and between unions themselves. Younger pilots took issue with what they saw as barriers to their progression onto the wide-body fleet. For NZALPA, this resulted in a conflict of interest within the membership between age-restricted pilots and other pilots."
When McGearty received medical clearance to return to work in May, 2018, he was not rostered back on in his normal role.
He continued to be paid, but without incentive pay, until he went on leave without pay later that year.
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In July, NZALPA asked Air NZ to stop the trial until legal advice was obtained.
McGearty asked the airline what the next steps would be.
Beck said Air NZ responded to McGearty, acknowledging that the situation was not ideal. It stated that the fairest approach, while waiting for consensus, was to continue the current arrangements but allow pilots like him to have the choice of moving to an A320 position or taking leave without pay.
He was placed on leave without pay from the end of August 2018.
McGearty said that Air NZ failed to comply with the terms of the collective agreement and that the breach amounted to an unjustified action which disadvantaged him.
The airline said the standard was a genuine occupational qualification which entitled it to treat him differently on the basis of age.
It said it implemented reasonable accommodations which had been operating, with agreement, for over a decade prior to McGearty's claim.
These included allowing older pilots to move to the A320 fleet or retire, committing to creating a pilot vacancy where none existed to accommodate those who wanted to move to the A320 fleet and, later, developing and implementing the trial.
"Air NZ submits that its reasonable accommodation framework was generous and by itself more than satisfies their legal obligations not to unlawfully discriminate" Beck noted.
"It argues that Captain McGearty's requests in 2017 and 2018 to continue as [before] were not feasible prior to the implementation of the trial and would have required implementing a bespoke roster. It says that accommodating him in this manner would have caused it significant business disruption."
It said it complied with its employment obligations under the collective agreement, as well as its legal obligations not to unlawfully discriminate against McGearty.
"I am alive to the fact that the problem was bigger than Captain McGearty. Air NZ needed to take steps to address those issues with the unions and its employees with a view to finding a more permanent solution, particularly given the strength of feeling around the issue. However, that did not preclude it from resolving Captain McGearty's individual situation in the interim when it had clearly been put on notice of his claim of discrimination," Beck said.
"Captain McGearty was disadvantaged by the unjustified actions of Air NZ."
She said the decision to place him on leave without pay was also unjustified.
"Air NZ unlawfully discriminated against Captain McGearty by reason of his age. The unlawful discrimination occurred through Air NZ's failure to make adjustments to ensure that Captain McGearty could continue as a C7 - adjustments which did not amount to unreasonable disruption of its business activities."
She said he did not fail to mitigate his losses and his refusal to take a position flying the A320 was not unreasonable given his desire to maintain his position.
"Captain McGearty was not stopped from claiming that he was unjustifiably disadvantaged or unlawfully discriminated against. His individual interests and claims were maintained independently of the collective interests of NZALPA."
All 777 aircraft were grounded in March 2020 because of Covid and when the trial restarted in April 2022, McGearty did not have the seniority for it and Air New Zealand said he could not be accommodated as a captain on the fleet.
McGearty's claim for remedies ends on July 24, 2022, the date of his 70th birthday. Beck said she was not required to make a finding on what those remedies should be. If the parties could not resolve the matter, they could seek the court's assistance.
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