Joffe t/a J Air v Commission for Conciliation Mediation and Arbitration and Others (JA84/2017) [2018] ZALAC 44; [2019] 1 BLLR 1 (LAC) (7 June 2018)

Principle:

Where official regulations set conditions affecting continued employment for those over the age of 60,they do not automatically impose a 'normal retirement age' justifying dismissal. They simply set conditions which must be met affecting continued employment.

Facts:

A commercial air transport operator, employed only two pilotswho both turned 60 in the same year. The employment of both pilots was governed by the Civil Aviation Regulations, which prohibit pilots over the age of 60 years from piloting international air transport operations except as a member of a multi-pilot crew, the remaining members of whom are under 60.

This dilemma resulted in the employer informing one employee, H, that he had employed another pilot and that his services would not be required after three months. H referred a dispute to the CCMA claiming that he had been unfairly dismissed for operational requirements. The commissioner ruled the dismissal substantively and procedurally unfair and ordered the employer to pay H compensation equal to three months' salary plus severance pay.

At the Labour Court the employer's application for review of the award was dismissed. The employer contended that H's employment had terminated because he had reached the normal retirement age for a co-pilot.

The LAC noted that the LRA provides that a dismissal based on age is fair if the employee has reached an agreed or normal retirement age for persons employed in the same capacity. The employer did not have an agreed retirement age for its pilots; it relied exclusively on the regulations. The regulations do not prohibit a pilot who has attained the age of 60 from flying on international commercial flights; they merely attach conditions to them doing so. The regulations even make provision of pilots who have turned 65 to fly under certain conditions. The argument that the regulations set a normal retirement age for co-pilots was regarded by the court as absurd.

The LAC held further that the employer had not consulted over alternatives suggested by H that might have saved his job. His dismissal was both substantively and procedurally unfair. The appeal was dismissed with costs.

Extract from the judgment:

Musi JA

[16]   Section 187(2)(b) of the Act reads as follows:
  1. 'Despite subsection (1) (f) -

    1. a dismissal may be fair in the reason for dismissal is based on an inherent requirement of the particular job;
    2. a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.'

[17]   It is common cause that the parties did not agree on a retirement age. The appellant also did not have a normal retirement age for its pilots. The appellant only relies on the provisions of the regulation for his contention that 60 years was the normal retirement age. What is a normal retirement age?

[18]   In Rubin Sportswear v SACTWU and Others, Zondo JP (as he then was) investigated the different contexts in which the adjective "normal" and the adverb "normally" were used in different statutes in order to discern what "normal" means in the context of section 187(2)(b). He came to the following conclusion:

'[19]   It seems to me that the word "normal" as used in section 187(2)(b) really means what it says. It means that which accords with the norm. However it is important to bear in mind that that word is used in relation to persons employed in the same capacity as the person whose dismissal on the basis of having reached normal retirement age is in issue. Section 187(2) (b) must, therefore, not be read as if it says: "Despite subsection (1)1(f), a dismissal based on age is fair if the employee has reached the normal or agreed retirement age." It includes the words at the end "for persons employed in that capacity". What the section does not make clear is whether the words "persons employed in that capacity" refer to such persons who are in the same employer's employ or whether it also refers to persons who are employed in the same capacity by other employers in the same industry or in general.

[20]   It seems to me conceivable that one employer could have different normal retirement ages for different categories of employees within its workforce. There may, for example, be different normal retirement ages for professionals and artisans. In such a case the employer cannot retire an employee on the basis of a normal retirement age applicable to employees employed in a capacity different from that of his own. In other words, where an employer seeks refuge in the provisions of section 187(1)(b) against a claim of unfair dismissal and his defence is that the employee had reached normal retirement age, he must show not only that the employee had reached normal retirement age but that the retirement age is normal to employees employed in the same capacity as the employee concerned.' I agree.

[19]   The regulations define a "co-pilot" as follows:

'co-pilot means a licensed, type-rated pilot required by these regulations to serve in any piloting capacity other than as PIC, but excluding a pilot or is on board the aircraft for the purpose of receiving flight instruction.'

A pilot-in-command (PIC) is defined as "the pilot designated by the operator as being in command and charged with the safe conduct of a flight, without regard to where the or not he or she is manipulating the controls". It is common cause that Pratt was the PIC.

[20]   In order to properly grasp what the regulations regulate, one must discern what it says in order to understand what it does not say. It says, firstly, that a pilot who has attained the age of 60 years may act as a pilot of an aircraft engaged in international commercial air transport operations if he or she is a member of a multi-pilot crew and is the only member of the multi-pilot crew who has attained the age of 60. Secondly, a pilot who has attained the age of 60 may act as a pilot of an aircraft engaged in international commercial air transport operations, where the relevant authority of a foreign state has given permission for that pilot to be a member of the aircraft flight crew notwithstanding his or her age.

[21]   The regulations do not prohibit a pilot who has attained the age of 60 to fly an aircraft engaged in international commercial transport operations. It permits such pilot to be a member of a multi-pilot crew if certain conditions are met. The conditions are, firstly, that the other pilot must be younger than 60 years of age and, secondly, irrespective of the age of the second pilot, the pilot who is above the age of 60 may be part of a multi-pilot flight crew if the relevant authority of a foreign state has given permission for the pilot to be a crew member. Foreign authority is defined, in the regulations, as "the authority of a foreign State that issues the air operator certificate and oversees the operations of its air operators."

[22]   The regulations expressly prohibit a pilot who has attained the age of 65 years to be a pilot-in-command of an aircraft engaged in international commercial air transport operations. There is, however, no prohibition against a 65-year old co-pilot being a member of a multi-pilot crew if the other pilot is younger than 60 years. The regulation therefore determines the normal retirement age for a PIC of an aircraft engaged in international commercial air transport operations. It contains no such provision for a co-pilot.

[23]   The argument that the normal retirement age for a co-pilot is, in terms of the regulations, 60 years is absurd. This is so because it would mean that a PIC who has more responsibilities and is responsible for the safe conduct of a flight may retire at 65 whereas a co-pilot who generally has lesser responsibilities should retire at the age of 60 years. In my view, the regulations do not contain a normal retirement age for a co-pilot. At best it sets conditions for a co-pilot to meet before such pilot may be engaged in international commercial air transport operations. I hasten to mention that the conditions only apply to a co-pilot who is engaged in international commercial air transport operations and not to a pilot who is engaged in local commercial air transport operations.

[24]   The appellant's reliance on section 187(2)(b) of the Act is therefore misplaced. It is glaringly ironic that the appellant allowed Harrison to fly with Pratt after the former had attained the age of 60. That on its own belies the fact that the appellant genuinely thought that the normal retirement age for a co-pilot engaged in international commercial air transport operations is 60 years. It is not in dispute that Harrison's employment was terminated. It is also not in dispute that no alternatives to the termination of Harrison's employment were explored. Harrison made concrete proposals, which, if implemented would have saved his job. Those were not considered.

[25]   When Harrison and Pratt met on 4 May 2015, the appellant already engaged Harrison's replacement. The termination of Harrison's employment was a fait accompli. In fact, Harrison, Pratt and the appellant accepted that one of the two pilots had to go. They were both affected employees, yet the one was used as the harbinger of bad news to the other. There was no attempt to consult with Harrison before his dismissal; he was simply informed about the appellant's decision.

[26]   The court a quo correctly found that this is one of those cases where the procedural and substantive unfairness of the dismissal are intertwined. It properly rejected the appellant's contention that the arbitrator should have found that the dismissal was substantively fair but procedurally unfair. The court a quo's finding that the arbitrator's award is one which a reasonable decision-maker could reach is unassailable. The appeal ought to be dismissed.

[27]   There is no reason in law or fairness why a costs order should not be made in favour of the successful party.

[28]   I, accordingly, make the following order:

The appeal is dismissed with costs.