Air Canada pilots reinstated from mandatory retirement

Human rights tribunal found collective agreement retirement provision was discriminatory, but Federal Court will hear union’s appeal of decision
|employmentlawtoday.com|Last Updated: 11/08/2010

Air Canada must reinstate two pilots who were forced to retire at age 60 under its collective agreement’s mandatory retirement provision, the Canadian Human Rights Tribunal has ruled.

George Vilven, 67, and Neil Kelly, 65, claimed they were unfairly terminated in 2003 and 2005, respectively, within days of each turning 60 and in accordance with the mandatory retirement age provisions of the pilots’ pension plan, which was part of the collective agreement.

The tribunal initially found retirement at 60 for pilots was allowed under the Canadian Human Rights Act, which had a provision stating it was not discrimination to terminate employment if an individual had reached “the normal age of retirement for employees working in positions similar to the position of that individual.” It based its decision on the International Civil Aviation Organization (ICAO) maximum age for pilots — 60 years old — and the fact other international airlines required mandatory retirement at age 60 or younger.

However, the Federal Court found the provision violated the requirement for equal treatment under the Canadian Charter of Rights and Freedoms. It referred the case back to the tribunal, which reheard the case in 2009 and determined the provision was created when the labour market conditions were different. With an older workforce, the abolition of mandatory retirement didn’t create undue hardship and Air Canada could ccommodate older pilots with domestic flights, said the tribunal.

On Nov. 8, the tribunal announced its remedy and said Vilven and Kelly should be “reinstated to employment as pilots with Air Canada as of the date of this decision on condition that they have a valid pilot licence, a valid medical certificate showing that they are fit to fly a commercial aircraft under the applicable Transport Canada medical standards and a current instrument flight rating.”

Air Canada was ordered to pay lost income for the two pilots retroactive to Sept. 1, 2009, until the reinstatement date, and to return their seniority to what it was when they were let go.

The tribunal, however, rejected the pilots’ request for $20,000 each for pain and suffering.

The pilots’ union’s appeal of the tribunal’s decision will be heard by the Federal Court on Nov. 22.

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