| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 353/02 |
| Hearing date | 19 Nov 2002 |
| Determination date | 05 December 2002 |
| Member | D King |
| Representation | R McCabe ; KM Thompson |
| Location | Auckland |
| Parties | Rush v Air New Zealand Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Respondent compulsorily retired applicant at age 60 - Unable to captain aircraft over US airspace - Contractual discretion to direct applicant to alternative position - Number of alternative vacancies available - Dismissal unjustified - DISCRIMINATION - Compulsory retirement in breach of Human Rights Act 1993 - Termination amounted to discrimination on basis of age - No attempt to accommodate applicant in accordance with s35 Human Rights Act 1993 - Remedies - Failure to mitigate losses disentitled applicant to reimbursement of lost wages - UNJUSTIFIED DISADVANTAGE - Whether applicant's position redundant - Alternative positions available - Redundancy barred due to applicant's level of seniority - No entitlement to redundancy compensation - No unjustified disadvantage - Airline captain |
| Result | Application granted (Unjustified dismissal and discrimination) ; Application dismissed (Unjustified disadvantage) ; Compensation for humiliation etc ($35,000) ; Costs reserved |
| Statutes | Human Rights Act 1993 s21(1);Human Rights Act 1993 s22;Human Rights Act 1993 s26;Human Rights Act 1993 s30 |
| Cases Cited | Argosy Imports Ltd v Lineham [1998] 3 ERNZ 976;New Zealand Van Lines Limited v Proceedings Commissioner [1994] 2 ERNZ 140;Smith v Air New Zealand Ltd [2000] 2 ERNZ 376 |
| Number of Pages | 5 |
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