McGearty v Air New Zealand Ltd

Captain McGearty was a highly experienced pilot for Air New Zealand, holding the top rank as a C7 Boeing 777 captain. Upon turning 65, international aviation rules limited his ability to fly certain routes. Air New Zealand, citing both international standards and its collective agreement with the pilots’ union, placed him on leave without pay and offered him a less senior position on a different aircraft. Captain McGearty declined, arguing this would unfairly reduce his status and earnings.

He brought a personal grievance claim, alleging unjustified disadvantage and unlawful discrimination based on age. The dispute centred on whether Air New Zealand had acted fairly and lawfully, and whether the collective agreement or international rules justified its actions. The pilots’ union intervened, supporting Air New Zealand’s interpretation of the agreement.

The Employment Court found that Air New Zealand had unjustifiably disadvantaged Captain McGearty and unlawfully discriminated against him by reason of age. The Court held that the airline’s decision to place him on leave without pay, without properly investigating alternatives or making reasonable adjustments, breached both the collective agreement and anti-discrimination laws.

The Court rejected Air New Zealand’s argument that the collective agreement and international regulations justified its actions. It also found that Captain McGearty was not estopped from bringing his claim, despite his union membership and the collective agreement’s terms. The Court emphasised the need for employers to actively consider reasonable adjustments before making decisions affecting older employees.

Employers must not rely solely on collective agreements or industry standards when making decisions about employees affected by age-related restrictions. They are required to consider each employee’s circumstances and explore reasonable adjustments that would allow the employee to continue working, unless such adjustments would cause unreasonable disruption.

This applies even in highly regulated sectors, such as aviation, where international rules may restrict certain roles. Employers should engage with affected employees, document their decision-making process, and seek legal advice if unsure about compliance. Failing to do so can result in findings of unjustified disadvantage and unlawful discrimination.

When dealing with age-related restrictions, employers should follow a structured process to ensure fair treatment and legal compliance. Start by identifying affected roles and employees, then review relevant laws and agreements. Engage with the employee to understand their preferences and needs, and explore possible adjustments or alternative roles.

Document all discussions and decisions, and assess whether proposed changes would cause unreasonable disruption. If an employee declines an alternative role, consider whether the offer was reasonable and whether refusal is justified. Regularly review policies and agreements to ensure they remain compliant with current laws.

This case involved interpretation of the Employment Relations Act 2000, particularly sections relating to personal grievances for unjustified disadvantage and unlawful discrimination. It also considered the impact of international aviation standards set by the International Civil Aviation Organisation (ICAO), which restrict pilots over 65 from certain international flights.

Employers must comply with both domestic anti-discrimination laws and relevant international standards, but cannot use international rules as a blanket justification for disadvantageous treatment. Collective agreements must also be interpreted in light of individual rights and legal obligations.