Termination of Qantas pilots upon reaching 65 years of age ruled fair

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Termination of Qantas pilots upon reaching 65 years of age ruled fair

The Fair Work Commission has made a significant decision in ruling the dismissal of two senior Qantas pilots due to their reaching 65 years of age was neither harsh, unjust or unreasonable.

Both Applicants were employed as long-haul pilots commanding A380 aircraft on international flights.

The International Civil Aviation Organisation (ICAO) rules prohibit a pilot engaged in international flying from operating in most airspaces when a pilot attains the age of 65 years (known as the `Rule of 65’). As they approached that milestone, both pilots had been through a show cause process where various options were considered, but ultimately, both were terminated when they reached 65 during 2020.

At the hearing before Commissioner Leigh Johns, Qantas contended that the dismissals were not unfair because the `Rule of 65’ meant they could no longer perform the inherent requirements of their job as they were prevented from engaging in long haul flights. Further, Qantas argued that although both pilots had indicated a preference to transfer to short haul flights, their requests could not be accommodated as no pilot vacancies existed at that time or in the reasonably foreseeable future due to the ongoing impact of the COVID-19 pandemic.

Ultimately, in rejecting the applications, Commissioner Johns accepted the majority of Qantas’ submissions. He noted that the Applicants had not been treated any differently to other pilots who had turned 65 years of age. He accepted that they could not be offered short haul positions as none existed.

He also rejected the notion of allowing them to be stood down without pay due to the ongoing costs that Qantas would incur due to the accrual of their leave entitlements during that period.

He noted that the pilots had been very well remunerated. Throughout their lengthy flying careers, they had been on notice that they would be precluded from international flying when they reached 65 years of age (initially, the limit was 58 years of age).

Further,

“As stated earlier, put at its highest the Applicant’s case is that he lost the chance to secure a short haul vacancy at some time in the future. The loss of that remote chance is unfortunate, but it is just one of the unavoidable and irreversible impacts of the pandemic. Qantas is not responsible for the changed circumstances, and the impact of the pandemic is not being disproportionately borne by the Applicant”.

Consequently, Commissioner John dismissed both unfair dismissal applications.

AP and GK v Qantas Airways Limited (U2020/15461 and U2020/15799) 1 September 2021

 

For questions about discrimination, age restrictions, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

 

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