A Qantas pilot facing the sack for turning 65 claims the airline is unlawfully discriminating against him based on age.
He has filed a complaint with the Australian Human Rights Commission.
This week, the Federal Court imposed a temporary injunction preventing Qantas from sacking him before the Commission deals with the case.
‘Rule of 65’
Captain Paul Summers has been flying internationally for Qantas for 32 years, currently captaining the A330 aircraft.
Aviation laws in many countries stipulate that long-haul pilots must not be older than 65.
As Summers’ 65th birthday approached in February, Qantas informed him that it intended to terminate his employment.
It said that as a consequence of the ‘Rule of 65’ – he wouldn’t be able to perform the inherent requirements of the job.
As a result of the COVID-19 pandemic, Qantas offered Summers and 55 other pilots a special early retirement package.
The generous pay out was worth three-times more than a traditional voluntary redundancy deal.
However, he rejected the offer.
Summers insisted the ‘Rule of 65’ didn’t affect him because the A330 aircraft is also used on most domestic routes.
In fact, Summers had captained 33 domestic flights in the year before the COVID-19 shutdown of international operations.
Despite this, on the 5th of March, Qantas gave Summers five weeks notice of his termination.
Qantas pilot claims age discrimination
The captain subsequently filed an age discrimination complaint in the Australian Human Rights Commission.
He argued he could continue to fly domestic routes on the A330 aircraft, or be deployed to another position – for example, flight instructor.
However, Qantas said keeping him on will involve a major overhaul of its current rostering system.
The Age Discrimination Act prohibits discrimination in employment based on age.
This includes dismissing an employee or subjecting the employee to any other form of detriment.
However, the law also provides an exemption “if the person is unable to carry out the inherent requirements of the job because of his or her age”.
Industrial advocate Miles Heffernan from Discrimination Claims says Captain Summers will have a tough time proving his case.
“Having the ability to fly to other countries seems to me to be an inherent requirement of the job of a long-haul pilot,” he said.
“I’m not sure how Captain Summers will get around that exemption.”
Federal Court Judge Anna Katzmann also questioned the strength of the discrimination claim.
“While I am satisfied that Captain Summers has a prima facie case, I am unable to conclude that it is a strong one,” she said.
Despite this, Justice Katzmann granted him a temporary injunction, preventing Qantas from sacking him until his case can be heard by the Commission.
“Taking all relevant matters into account and weighing them in the balance, I have concluded that an interim injunction should be granted to preserve the status quo until the complaint to the Commission is withdrawn by Captain Summers or terminated by the President,” she said.
The full case will be heard in the coming weeks.
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