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 today sided with pilots David Brown and Glen Sycamore, ruling that Cathay unit New Zealand Basing Ltd (NZBL) 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.