A decision of the Employment Court illustrates the difficulties associated with discrimination in employment on the basis of age.
In a comparatively recent era, concepts such as compulsory retirement were commonplace within the New Zealand employment environment. Such concepts were, however, effectively made redundant by the introduction of human rights legislation in the early 1990s.
The issues associated with the effect of age on employment are complex. The recent decision of the Employment Court in Smith v Air New Zealand Limited (Unreported, Employment Court Auckland, 12 December 2000, Judge Colgan) illustrates some of the potential difficulties in this area.
Mr Smith was a highly skilled and experienced commercial airline pilot who had been flying various types of aircraft since 1964. Since 1982 he had flown international aircraft for Air New Zealand as a captain.
In 1999 Mr Smith turned 60 - a fact which proved problematic for his employer. Domestic regulations in many overseas countries (including several Pacific Island nations) precluded aircraft being flown by pilots over the age of 60. As a result, the international routes that Mr Smith could fly were automatically curtailed: he was unconditionally prevented from flying an aircraft to a number of nations and in respect of certain other nations he would only be allowed to fly with a special dispensation. Restrictions of this type were not, however, imposed by either Australia or New Zealand.The combined effect of these different restrictions meant, therefore, that the only international routes that Mr Smith could fly (at least without the need for special dispensation) were between destinations within Australia and New Zealand.
That outcome was, however, problematic of itself. The aircraft which Mr Smith had piloted for a number of years was the largest maintained by Air New Zealand - the 747-400. That aircraft was used extremely infrequently between Australia and New Zealand. Most trans-Tasman flights involved the use of a smaller aircraft - the Boeing 737-300. In the ordinary course of events, it was not possible for a pilot to make a "downward" move to pilot a smaller aircraft (although it was accepted that Air New Zealand had a discretion to allow such a move).
In the event, Air New Zealand argued that after Mr Smith turned 60 it was effectively prevented from allowing him to continue in his career as an international pilot and that his employment contract had become frustrated. Mr Smith argued that this stance was contrary to the Human Rights Act, and that Air New Zealand had discriminated against him on the basis of his age.
Section 21 of the Human Rights Act 1993 provides that age is a "prohibited ground of discrimination". Section 22 provides that where an employee is "qualified for work" an employer may not offer the employee less favourable conditions or opportunities, or subject the employer to any detriment, on the basis of any prohibited ground of discrimination. The Act does, however, contain certain exceptions in relation to age. Section 26 provides that different treatment on the basis of age may be allowed in respect of work which is performed wholly or mainly outside of New Zealand and where the laws or customs of the country in which work is performed contain a restriction based on age. Section 30 provides that it shall not be regarded as discrimination for an employer to distinguish on the basis of age where a genuine occupational qualification requires a certain age, or where reasons of safety justify such a distinction.
Judge Colgan held that that Air New Zealand could not rely upon the exceptions provided in the human rights legislation, and concluded that the company had unfairly discriminated against Mr Smith on the basis of his age. His Honour found that Mr Smith had been employed generally as a "Pilot in Command" (as opposed to being specifically qualified for a particular type of aircraft) and that his employment contract had not been frustrated simply because of his inability to fly certain international routes after he turned 60: Mr Smith could have flown trans-Tasman routes (or he could have worked alternatively as a First Officer). Judge Colgan held that Mr Smith had effectively been suspended without pay because he had turned 60, and that action had not been justified by the statutory exceptions because, amongst other things, Air New Zealand could have rostered him in alternative roles.
The outcome of the case was, therefore, a finding that Air New Zealand had breached Mr Smith's employment contract by not rostering him to work after his 60th birthday. Air New Zealand was ordered to pay damages to Mr Smith in an agreed sum representing lost wages. Further, the company was ordered to pay Mr Smith general damages of $10,000.
This case serves to underline an important restriction about which many employers may not be aware: discrimination on the basis of age will only be permitted in a limited range of situations. Where external requirements may allow restricted participation in employment because of age an employer must investigate all feasible options which would have the effect of allowing an employee to remain in employment. A failure to take these steps may result either in a personal grievance or in an action under the human rights legislation.