Air New Zealand Pilot wins in Supreme Court

After 35 years of service with Air New Zealand, former Boeing 747 flight instructor David McAlister was demoted to the position of First Officer by Air New Zealand when he turned 60 in 2004, in an attempt to comply with US regulations in force at that time which prohibited the position of pilot-in-command being filled by a person over 60 years of age.

As an international 747 skipper, McAlister was required to operate his aircraft in US airspace on frequent and regular occasions, comprising a substantial portion of his duties. McAlister won the Employment Court case for age discrimination when he challenged Air New Zealand’s action, but the decision was overturned by the Court of Appeal. Mr. McAlister subsequently appealed the case to the Supreme Court and has won a court ruling for the right to take the case back to the Employment Court.

The Supreme Court’s majority decision was that there was discrimination based on Mr. McAlister’s age but that, because his age was a genuine occupational qualification, Air New Zealand could take advantage of a statutory defence under S30 of the Human Rights Act. Its reason for remitting the case back to the Employment Court is for that court to establish whether Air New Zealand can also satisfy the necessary requirements of S35, namely that it was reasonably unable to adjust its activities to accommodate the restriction that the FAA rule placed on Mr. McAlister, who was also awarded $15,000 in costs.

Although numerous reports in the press have indicated that Mr. McAlister has won his case against Air New Zealand, what he has actually won is the right to continue the legal arguments in the Employment Court. McAlister is reported as saying that, if his litigation is successful, he will be seeking substantial damages and lost pay from Air New Zealand, possibly well into the realm of six figures.