Mandatory retirement OK at Air Canada

Union, airline pleased after pilots lose tribunal case

Two former Air Canada pilots were not discriminated against based on age because they were forced to retire at age 60, according to a recent ruling by the Canadian Human Rights Tribunal.

The tribunal ruled neither of the pilots, George Vilven and Robert Neil Kelly, experienced “age-related disadvantages or negative stereotyping” and that age 60 is the normal retirement age for other pilots who fly regularly scheduled international flights with major airlines.

“The ruling has implications for any organization that falls into the federal jurisdiction,” said Stuart Rudner, an employment lawyer and partner at Miller Thomson in Toronto.

Mandatory retirement policies won’t breach the Canadian Human Rights Act (CHRA) as long as the age is “normal” based on a comparison of similar organizations’ mandatory retirement ages, he said.

The tribunal was able to avoid addressing the bona fide occupation argument — whether or not safety was an issue in the age of a pilot — by making the case that section 15(1)(c) of the CHRA was not in violation of the Canadian Charter of Human Rights and Freedoms because of supporting past decisions, said Natalie MacDonald, an employment lawyer and partner with Grosman, Grosman and Gale in Toronto.

That section exempts a discriminatory practice if “an individual’s employment is terminated because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual.”

MacDonald added employers need to be careful how they determine a “normal” age when putting in place a mandatory retirement policy, as the ruling did not provide any clear guidelines for other federal employers outside the airline industry.

Peter Fitzpatrick, spokesman for Air Canada, said the tribunal ruling confirms the airline’s retirement policy is in compliance with the law and was fairly applied to the individuals concerned. The airline has no plans to change its mandatory retirement age, said Fitzpatrick, even though one of the chief comparative government bodies (the International Civil Aviation Organization) considered in the ruling to help define a “normal” retirement age recently changed its recommended mandatory retirement age from 60 to 65.

The two pilots were supported by the non-profit Fly Past 60 Coalition, composed of pilots launching legal battles to overturn the current mandatory retirement age negotiated by the Air Canada Pilots Association (ACPA) through collective bargaining. The founder of the Fly Past 60 Coalition Raymond Hall, also a captain with Air Canada, said the group is disappointed with the ruling.

“But the next case is very likely to succeed,” said Hall. “We have 20 or more cases waiting to go before the tribunal.”

Besides supporting the interests of these two pilots, Fly Past 60 Coalition’s long-term goal is to prove the CHRA is discriminatory under the charter.

The coalition hopes to appeal the tribunal ruling. Hall pointed out provincial human rights codes in numerous provinces do not allow mandatory retirement.

ACPA president and Air Canada Capt. Andy Wilson said the union is pleased by the decision; in particular, that mandatory retirement age “be a matter of collective bargaining.”

The ruling stated the purpose of section 15 (1)(c) of the CHRA is to strike a balance between the need for protection against age discrimination and the desirability of those in the workplace to bargain for and organize their own terms of employment.

Because both of the pilots agreed to the policy, and reaped the benefits, according to the ruling, “it should not be perceived as unfair to require (them) to ultimately bear the burden of that policy.”

Wilson said the policy is supported by union members by a margin of three to one.

“The ability to retire at 60 with full pension is a significant benefit that is valued by most of our membership,” said Wilson.

Indeed, the ruling noted Air Canada offers the “highest paying jobs in Canada, with the best benefits… and a very generous pension plan.” In stating there was no indication that Vilven or Kelly experienced age-related disadvantages or negative stereotyping, the tribunal noted that both pilots were able to find jobs with other airlines.

“The acceptance of employment with Skyservice meant that Mr. Kelly was able to supplement the $124,000 income that he was receiving from his Air Canada pension with what he earned as a pilot with Skyservice,” the tribunal said. “There is no doubt that the termination of employment has a profound impact on the self-worth and dignity of an individual. As difficult as that situation might be for the (pilots), an assessment of the impact of the termination of their employment on the complainants’ dignity must be viewed in the broader context of their careers.”

Hall said it was not right to suggest human dignity could be somehow counter-balanced by a compensatory dollar ¬figure.

Wilson also pointed out that mandatory retirement at age 60 enables younger employees to move up the ranks in a shared, equitable fashion. And the tribunal recognized this factor.

“The complainants may be unhappy about ending their rewarding careers as pilots with Air Canada,” it said.

“But that situation cannot be viewed in isolation. It must be seen in the context of a system that was designed to assign the responsibilities and benefits of being an Air Canada pilot over different stages in the pilots’ careers. All pilots in Air Canada understand that they will share these benefits and burdens equally at the appropriate stages in their careers.”

Lesley Young is a Toronto-based freelance writer.

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