AIR NEW ZEALAND LIMITED V DAVID MCALISTER CA CA278/06

AIR NEW ZEALAND LIMITED V DAVID MCALISTER CA CA278/06 20 April 2007IN THE COURT OF APPEAL OF NEW ZEALAND CA278/06 [2007] NZCA 143BETWEEN AIR NEW ZEALAND LIMITED Applicant AND DAVID MCALISTER Respondent Hearing: 16 April 2007 Court: O'Regan, Robertson and Wilson JJ Counsel: A H Waalkens QC and K M Thompson for Applicant R E Harrison QC for Respondent Judgment: 20 April 2007 at 3 pmJUDGMENT OF THE COURT Leave to appeal is granted in respect of the following questions: (a) Did the Employment Court err in law in concluding that the demotion of the respondent from his 747-400 flight instructor position occurred by reason directly or indirectly of a prohibited ground of discrimination, namely his age, in terms of s 104(1) of the Employment Relations Act 2000? (b) Was there any evidence to support the Court's finding at [98] of its judgment? (c) Did the Employment Court err in law in defining as the relevant comparator group for the purposes of ss 104(1)(a) and (b) of the Act those 747-400 Flight Instructors who are under 60 but aredoing work of the same description that the respondent was doing before reaching that age? (d) Did the Employment Court err in law in concluding that being of a particular age (here, under the age of 60) was not a genuine occupational qualification for the respondent's position of or employment as a 747-400 Flight Instructor, in terms of s 30(1) of the Human Rights Act 1993? (e) If errors are established arising from (a) to (d), was the Employment Court in error in concluding that the respondent's employment was affected to his disadvantage by an unjustified action by the applicant, namely the applicant's policy concerning pilots who had attained the age of 60?____________________________________________________________________REASONS OF THE COURT(Given by Robertson J)Introduction[1] Air New Zealand seeks leave to appeal a decision of the Employment Court delivered on 24 November 2006 by Judge Shaw. [2] Appeals from the Employment Court can only be heard with leave and the Court's jurisdiction is limited to questions of law. Leave will only be granted where the Court considers the question of law is of general or public importance or "for any other reason": Employment Relations Act 2000 (ERA), s 214(3). [3] Leave was sought to appeal six substantive questions of law. Upon analysis the matter is basically one general issue: the proper interpretation of s 104 of the ERA when applied to the circumstances of the respondent.Background[4] Air New Zealand employed Mr McAlister as a pilot. He attained the rank of captain of Boeing 747-400 aircraft (B747). He was also a standards captain undertaking flight instructor duties. [5] For most of his work Mr McAlister was required to be the pilot in command (PIC). Mr McAlister did a lot of long haul flights, a significant proportion of which flew across North America. Regulations made by the International Civil Aviation Authority (ICAO) and the United States of America Federation Aviation Administration (FAA) prohibit a pilot aged 60 from acting as captain or PIC. These regulations apply to North American and French territories. [6] On attaining the age of 60, Mr McAlister was moved by Air New Zealand from his position of flight instructor, ceased to hold the rank of captain and under protest was made first officer on B747 aircraft. Air New Zealand asserted this was because no pilot having attained the age of 60 could hold the position of PIC on B747 aircraft while the predominant operation of the B747s was through territories that adopted the ICAO and FAA regulations in relation to the age of pilots. [7] Mr McAlister brought a personal grievance alleging that Air New Zealand discriminated against him by reason of his age and had acted unjustifiably to his disadvantage. The matter was advanced straight to the Employment Court. [8] Judge Shaw found that Air New Zealand, in removing Mr McAlister because of his age, discriminated against him in a way that was to Mr McAlister's detriment and in breach of s 104(1)(b) of the ERA. She also found that Air New Zealand had acted unjustifiably towards Mr McAlister by applying a fixed policy to him that was discriminatory and affected his employment to his disadvantage.The fundamental issue[9] Section 104 provides:104 – Discrimination(1) For the purposes of section 103(1)(c), an employee is discriminated against in that employee's employment if the employee's employer or a representative of that employer, by reason directly or indirectly of any of the prohibited grounds of discrimination specified in section 105, or by reason directly or indirectly of that employee's refusal to do work under section 28A of the Health and Safety in Employment Act 1992, or involvement in the activities of a union in terms of section 107, - (a) refuses or omits to offer or afford to that employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available for other employees of the same or substantially similar qualifications, experience, or skills employed in the same or substantially similar circumstances; or (b) dismisses that employee or subject that employee to any detriment, in circumstances in which other employees employed by that employer on work of that description are not or would not be dismissed or subjected to such detriment; or (c) retires that employee, or requires or causes that employee to retire or resign. (emphasis added)[10] The applicant submitted that the interpretation of s 104 and in particular the phrase "by reason directly or indirectly of" is a question of law that is of general importance. Does the phrase mean that the ground of discrimination, in this case the age of Mr McAlister, must be the sole reason for the employer's act or a "substantial and operative factor"? Mr Waalkens argued that there had been no consideration of this point in the Employment Court. [11] The respondent accepted that the interpretation of "by reasons directly or indirectly of" raised a question of law of general or public importance, but disagreed as to the appropriate wording of the question of law to be considered. Mr Harrison submitted that the core issue was more appropriately framed as:Did the Employment Court err in law in concluding that the demotion of the respondent from his 747-400 flight instructor position occurred by reason directly or indirectly of a prohibited ground of discrimination, namely his age, in terms of s 104(1) of the Employment Relations Act 2000?[12] We agree that this is a question which comes within s 214 and that, thus framed, covers the first two issues raised by the applicant.Subsidiary issues[13] By the time of the oral hearing, there had been discussion between counsel who agreed that three subsidiary questions could be included. To an extent they are variations on the theme contained in the first question, but will ensure that all relevant issues are able to be considered. [14] The subsidiary questions are: (a) Was there any evidence to support the Employment Court's finding at [98] of its judgment? (b) Did the Employment Court err in law in defining as the relevant comparator group for the purposes of ss (1)(a) and (b) of the Act those 747-400 Flight Instructors who are under 60 but are doing work of the same description that the respondent was doing before reaching that age? (c) Did the Employment Court err in law in concluding that being of a particular age (here, under the age of 60) was not a genuine occupational qualification for the respondent's position of or employment as a 747-400 Flight Instructor, in terms of s 30(1) of the Human Rights Act 1993? [15] Finally, counsel were agreed that if leave were granted in respect of any of the issues raised, then leave to appeal should be granted also as to the effects of the alleged errors on the Employment Court's finding that Air New Zealand's actions were not justified.Urgency[16] The parties agreed that it was in both their interests that this matter be dealt with as quickly as possible. The parties agreed to a variation of r 38 and 40 of the Court of Appeal (Civil) Rules 2005 in that an application for a fixture and the filingof a case on appeal should occur within two months of notice being given rather than the standard six months, and that consideration should be given to priority for a hearing date.Result[17] Accordingly leave to appeal is granted on the following questions of law: (a) Did the Employment Court err in law in concluding that the demotion of the respondent from his 747-400 flight instructor position occurred by reason directly or indirectly of a prohibited ground of discrimination, namely his age, in terms of s 104(1) of the Employment Relations Act 2000? (b) Was there any evidence to support the Court's finding at [98] of its judgment? (c) Did the Employment Court err in law in defining as the relevant comparator group for the purposes of ss 104(1)(a) and (b) of the Act those 747-400 Flight Instructors who are under 60 but are doing work of the same description that the respondent was doing before reaching that age? (d) Did the Employment Court err in law in concluding that being of a particular age (here, under the age of 60) was not a genuine occupational qualification for the respondent's position of or employment as a 747-400 Flight Instructor, in terms of s 30(1) of the Human Rights Act 1993? (e) If there were errors established arising from (a) to (d), was the Employment Court in error in concluding that the respondent's employment was affected to his disadvantage by an unjustified action by the applicant, namely the applicant's policy concerning pilots who had attained the age of 60.[18] We make no order as to costs.Solicitors: Shanahan & Co, Auckland, for Respondent