MCALISTER V AIR NEW ZEALAND SC 49/2008
Leave to appeal was granted limited to the specific question whether the demotion occurred by reason of the appellant's age in breach of s104(1)(a) or (b) of the Employment Relations Act; the Court directed that the respondent address its alternative purposive interpretation argument in its submissions and that any...
Source-derived case information.
- Citation
- SC 49/2008
- Parties
- Appellant: David McAlister; Respondent: Air New Zealand
- Court
- Supreme Court
- Jurisdiction
- New Zealand
- Judgment Date
- 7 October 2008
- Procedural Posture
- Leave to Appeal (employment Law) / Leave Granted by Supreme Court
- Outcome
- Leave to appeal granted to consider whether the demotion was by reason of age contrary to s104(1)(a) or (b) of the Employment Relations Act
- Legal Topics
- Age Discrimination, Demotion, Employment Relations Act S104
Source-derived case record
Summary, issues, holding and outcome
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Parties
David McAlister
Appellant
Air New Zealand
Respondent
Procedural Posture
Leave to Appeal (employment Law) / Leave Granted by Supreme Court
Legal Issues
- 1 Whether the demotion of the appellant from B747-000 Flight Instructor to First Officer occurred by reason of age and thus constituted prohibited discrimination under s104(1)(a) or (b) of the Employment Relations Act
- 2 Whether the respondent's alternative argument constitutes an additional ground of appeal or is an incidental purposive interpretation issue and the procedural limits on reply submissions
Ratio Decidendi
Leave to appeal was granted limited to the specific question whether the demotion occurred by reason of the appellant's age in breach of s104(1)(a) or (b) of the Employment Relations Act; the Court directed that the respondent address its alternative purposive interpretation argument in its submissions and that any appellant reply be confined to that alternative argument.
Court Disposition
Leave to appeal granted to consider whether the demotion was by reason of age contrary to s104(1)(a) or (b) of the Employment Relations Act
Orders
- Leave to appeal granted
- Approved ground of appeal: whether the demotion occurred by reason of age under s104(1)(a) or (b) of the Employment Relations Act
Full Case Text
Judgment text and source record
1 paragraphs
MCALISTER V AIR NEW ZEALAND SC 49/2008 7 October 2008IN THE SUPREME COURT OF NEW ZEALAND SC 49/2008 [2008] NZSC 76BETWEEN DAVID McALISTER Appellant AND AIR NEW ZEALAND Respondent Court: Elias CJ, Tipping and McGrath JJ Counsel: R E Harrison QC for Appellant A H Waalkens QC and K M Thompson for Respondent Judgment: 7 October 2008JUDGMENT OF THE COURT A The application for leave to appeal against the judgment of the Court of Appeal in Air New Zealand Ltd v McAlister [2008] NZCA 264 is granted. B The approved ground of appeal is: Did the demotion of the appellant from his position as a B747-000 Flight Instructor to one of First Officer occur by reason of a prohibited ground of discrimination, namely his age, in terms of s 104(1)(a) or (b) of the Employment Relations Act? C The respondent should address its alternative argument in support of the Court of Appeal's judgment in submissions that it files as respondent in the appeal. Any reply to those submissions by the appellant must be confined to that alternative argument.REASONS[1] The Court doubts that the respondent's alternative argument will amount to another ground of appeal in terms of r 20(4). It appears to be an incidental argument of meaning based on purposive interpretation. We consider that counsel for the appellant may be able to anticipate the argument and adequately address it in his submissions on appeal, thereby obviating any need for a written reply to the respondent's submissions. If, however, counsel for the appellant considers it necessary to file a written response, he may do so confining it to that point. In general the Court expects points of an appellant in reply to be made orally at the hearing of the appeal.Solicitors: Shanahans, Auckland for Appellant