Kiwi Cathay Pacific pilots win age discrimination case

Cathay Pacific has lost its case against two Kiwi pilots it wanted to force to retire.
CHRIS MCKEEN/STUFF

Cathay Pacific has lost its case against two Kiwi pilots it wanted to force to retire.

Two Kiwi pilots have won an employment case against airline giant Cathay Pacific after the Hong Kong-based company tried to force them to retire early.

Auckland-based pilots David Brown and Glen Sycamore are Cathay Pacific pilots of more than 20 years who are employed by a New Zealand-based subsidiary of the airline.

Their employment agreements with that subsidiary, New Zealand Basing (NZBL), meant that when they turned 55 years old, the airline could require them to retire.

When both did reach that age in 2015, the airline tried to enforce their retirement, but the pilots brought a personal grievance claim which alleged this was illegal as it discriminated against them because of age.

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The case began with the Employment Court ruling in favour of the pilots, although it and later decisions were appealed by both parties all the way to the Supreme Court.

Cathay Pacific pilot Dave Brown, pictured in 2009, has flown with the airline since the early 1990s.
CHERIE HOWIE/STUFF

Cathay Pacific pilot Dave Brown, pictured in 2009, has flown with the airline since the early 1990s.

In a decision released on Wednesday, the Supreme Court has unanimously allowed the pilots' appeal.

Both had remained employees during the litigation, being senior captains who generally flew between Auckland International Airport and Hong Kong International Airport.

The case essentially came down to whether New Zealand's Employment Relations Act was relevant or whether the employment agreements were governed by the law of Hong Kong, Cathay Pacific's base.

The Court of Appeal had last year ruled the subsidiary could require the pilots to retire as was stated in their employment agreements, with New Zealand law not overriding those.

But the Supreme Court found in favour of the pilots, whose work was based in New Zealand and whose flights began and concluded here.

The judgment said the right not to be discriminated against by age was a free-standing right which was not dependent on terms of an employment agreement.

Furthermore, employees such as aircraft crew, mariners and others who worked predominantly outside of New Zealand would inherently have employment agreements not based here, but that did not exclude them from the same rights.

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"Although there is no clear statement in the 2000 Act that the right not to be discriminated against can apply to employment agreements governed by foreign law, we are satisfied that the legislative scheme as a whole can only sensibly be interpreted on the basis that it does so apply," the judgment said.

"The rights apply to conduct which occurs in New Zealand.

"It follows that a Hong Kong choice of law would not immunise NZBL from liability in respect of such breaches as occurred in New Zealand."

 - Stuff

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