Summers of '65' 3 min read
A pilot successfully stopped Qantas from implementing its decision to terminate his employment after he lodged a complaint with the Australian Human Rights Commission (AHRC) alleging age discrimination.
Although the ultimate decision is yet to be made by the AHRC, this decision brings mandatory retirement policies into the spotlight again and sheds some light on the question of whether an employee is able to carry out the inherent requirements of the particular employment because of their age – which the employer must prove.
Captain Summers had been employed by Qantas for over 32 years. Shortly before his 65th birthday, Qantas told him that - as a long-haul pilot subject to mandatory retirement at age 65 - he would be unable to carry out the inherent requirements of his role and he should show cause as to why his employment should not be terminated.
Qantas' mandatory retirement policy was implemented to reflect the Convention on International Civil Aviation (the Convention) which prevents pilots over 65 from operating international commercial flights (the Rule of 65).
Summers was given three options: retire, transfer to a short-haul position (for which there were no vacancies) or be redeployed to an alternative role (where no vacant roles were identified).
Although Summer' suggested that he be redeployed, Qantas gave notice of the termination of his employment while also encouraging him to keep an eye on internally advertised vacancies. Summers then lodged an age discrimination complaint with the AHRC and applied for an interim injunction to prevent Qantas implementing his dismissal while that complaint was addressed.
Qantas said that Summers was unable to perform the inherent requirements of his role because of his age, as he would not be able to fly to countries that had adopted the Convention or participate effectively in Qantas’ roster system. Summers argued he had the capacity to carry out the inherent requirements of his role, and that he could still fly short-haul and some long-haul flights.
The court granted the interim injunction to prevent Qantas implementing its decision to terminate. Summers had not only flown internationally and there was a good chance he could meet the inherent requirements of his employment by being able to still fly a majority of routes. The court took into account the personal and psychological impact of forced unemployment on an individual and the fact that in the current economic climate a 65 year-old pilot had poor chances of finding alternative work in the industry.