Originally published in Canada’s Occupational Health and Safety Magazine on January 18th, 2011. To go to the Occupational Health and Safety Magazinewebsite please click here
A federal tribunal has ordered Air Canada to reinstate two long-time pilots who had earlier been forced to retire, in line with mandatory provisions of their collective agreement.
In a November ruling, the Canadian Human Rights Tribunal (CHRT) in Ottawa directed Air Canada to reinstate George Vilven, 67, and Neil Kelly, 65. Reinstatement is “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,” writes CHRT member J. Grant Sinclair.
The decision came more than a year after the tribunal determined that Air Canada and the Air Canada Pilots Association had engaged in a discriminatory practice against Kelly and Vilven, who had worked for the carrier since 1972 and 1986, respectively. The collective agreement defines the “normal retirement date” as the first month after a worker turns 60.
The claim had also requested that CHRT direct Air Canada to “cease and desist” applying mandatory retirement provisions to all pilots. But the tribunal declined, noting “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. However, on the whole, Hall says the group “accomplished what we’ve set out to do, and that is to get [Vilven and Kelly] back to work.”
Beyond reinstatement, Sinclair ordered that the two pilots retain the seniority ranks they had before retirement; be enrolled in the next available training course for equipment they are entitled to fly; receive the wages and benefits of an active employee, including accrual of pension benefits on the same terms as before retirement; and be compensated for lost income from September 1, 2009 (when the CHRT ruled the practice was discriminatory) to reinstatement.
Sinclair dismissed the request for each pilot to receive $20,000 in damages for pain and suffering and $20,000 for the airline’s willful and reckless actions. He noted both employees were aware of the mandatory retirement provisions and did not challenge them until after they had been retired.
“The whole purpose of human rights legislation is to stop discrimination, and they haven’t stopped [it]. They’ve stopped discrimination against these two individuals only,” Hall contends.
Susan Eng, vice-president of advocacy for the Canadian Association of Retired Persons (CARP) in Toronto, concurs. The CHRT “made it clear that the decision in the case for these two pilots does not conclude the issue of whether mandatory retirement is eliminated for everyone else in federally regulated industries – or even other pilots at Air Canada.”
Although CARP welcomes the ruling, Eng says in a statement that the ultimate goal is to have Section 15(1)(c) of the Canadian Human Rights Act repealed. The section notes “it is not a discriminatory practice if an individual’s employment is terminated because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual,” she reports.