Originally published in the Canada’s Occupational Health and Safety Magazine on November 17th, 2010. To go to the Canada’s Occupational Health and Safety Magazine website please click here
The Canadian Human Rights Tribunal (CHRT) has ordered Air Canada to reinstate two long-time pilots who were forced to retire under mandatory retirement provisions in the airline’s collective agreement.
In the November 8 ruling, CHRT member J Grant Sinclair ordered Air Canada to reinstate George Vilven, 67, and Neil Kelly, 65, “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.”
The decision comes a little more than a year after the tribunal concluded in August, 2009 that the airline and the Air Canada Pilots Association had engaged in a discriminatory practice against Kelly, who has worked for the airline since 1972, and Vilven, who began employment with Air Canada in 1986.
Under the pilots’ collective agreement, the “normal retirement date” is defined as the first month after the worker turns 60 (in August, 2003 for Vilven and November, 2005 for Kelly). In the claim, the CHRT was also asked to “cease and desist” applying the mandatory retirement provisions to all pilots, but the tribunal refused, saying that “the more appropriate” remedy would be reinstatement.
“I’m disappointed that we weren’t able to end this process, that the tribunal didn’t issue the cease order and Air Canada may continue to arbitrarily terminate pilots’ employment,” says Raymond Hall, legal counsel for the Fly Past 60 Coalition, which represented the two workers.
“That’s the disappointing part, but on the whole, we’ve accomplished what we’ve set out to do and that is to get George Vilven and Neil Kelly back to work.”
In addition to reinstatement, the CHRT ordered that the pilots retain the seniority rank they had before retirement; receive the wages and benefits of an active employee, including accrual of pension benefits on the same terms and conditions as before their retirement; and “be enrolled in the next available training course for the equipment that they are entitled to fly according to their seniority.”
The tribunal also ordered the pilots to be compensated for lost income from September 1, 2009 (after the tribunal’s earlier decision finding the employees had been discriminated against) to the date of their reinstatement.
Tribunal turns down requested damages
The tribunal, however, dismissed requests from each pilot for $20,000 for pain and suffering and $20,000 for willful and reckless damages, saying that both pilots were aware of the mandatory retirement age of 60 and did nothing to challenge this until after they were retired by the airline.
“On the contrary, they benefitted from this discriminatory practice by being able to move up more quickly in terms of seniority, higher paid positions, preferred monthly schedules and vacation schedules,” Sinclair writes.
Hall says that he believes the ruling should expand to other pilots as well, noting that in “normal human rights” cases, tribunals deal with individuals, but in this case it deals with a collective agreement.
