The New Zealand Herald

Pilots can’t be ditched because of age: Court

- — BusinessDe­sk

The Supreme Court has backed two Auckland-based Cathay Pacific pilots who claimed local law meant they couldn't be forced to retire at 55.

Chief Justice Sian Elias, and justices William Young, Susan Glazebrook, Mark O'Regan and Ellen France yesterday sided with pilots David Brown and Glen Sycamore, ruling that Cathay unit New Zealand Basing Ltd couldn't discrimina­te against the pair on the grounds of age.

That overturns a decision in the Court of Appeal which accepted the company's argument that the agreement was governed by Hong Kong law which New Zealand legislatio­n didn't override.

While the bench came to the same conclusion, the Chief Justice and Justices France and O'Regan took the view that pilots weren't captured by any exceptions in the Human Rights Act and would fall within the Employment Relations Act.

It would be “very odd” for the law to “allow discrimina­tion in the employment context in relation to persons in the appellants' position, solely on the basis of the parties' choice of law”, they said.

Justices Young and Glazebrook also ruled in favour of the pilots, finding the right not to be discrimina­ted against because of age wasn't limited to employment agreements governed by New Zealand law, and comparing it to prohibitio­ns against other forms of discrimina­tion such as sexism or racism.

“It might be thought to be contrary to the policy of the HRA [ Human Rights Act] to exclude its operation in relation to acts of discrimina­tion which occur in New Zealand merely because the proper law of the employment agreement is not that of New Zealand,” the judges said.

However, Justices Young and Glazebrook said their focus was on age discrimina­tion and that they didn't make a determinat­ion on “the territoria­l scope of the other personal grievance rights, and in particular, the right not to be unjustifia­bly dismissed [in cases not involving unlawful discrimina­tion]”.

The judges also set aside the Court of Appeal's costs order against the pilots, and ordered the company to pay the pilots' appeal court costs and the $25,000 of costs and reasonable disburseme­nts from the Supreme Court appeal.

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