Originally published in the Toronto Star on November 8th, 2010. To go to the Toronto Star website please click here
The Canadian Human Rights Tribunal has ruled that two pilots forced into retirement by Air Canada and its pilot’s union must be reinstated with the proper seniority.
But the decision doesn’t apply to another 123 pilots waiting for similar action.
The collective bargaining agreement between Air Canada and its union states that pilots must retire at the age of 60 and begin receiving their pension. However, George Vilven, now 67, and Neil Kelly, now 65, took up their fight against the company and the union after declaring they did not want to be forced into retirement and wished to continue flying.
Last year, the tribunal ruled that Air Canada’s contract with the pilots’ union, the Air Canada Pilots Association, was discriminatory. Following that ruling Vilven and Kelly were contacted by Air Canada and offered junior positions under a memorandum of agreement, which the two pilots didn’t agree with.
“That memorandum of agreement is completely overridden by this decision today,” said Raymond Hall, the lawyer representing the pilots. “They both were successful in getting back the seniority they would have had, had they not been terminated.”
The tribunal wrote in its decision Monday that the two men would have to be reinstated after fulfilling basic flight requirements: “Once these requirements are met, Air Canada will reinstate the complainants and they will be eligible to attend the next available training course for the equipment that they are entitled to fly according to their seniority.”
Meaning instead of the short-haul flights on small aircraft they had been offered, they will return to large aircraft flying long-haul flights. The decision also stated the pilots are to receive full lost wages, going back to Sept. 1, 2009, shortly after the tribunal’s decision on the collective bargaining agreement.
The pilots were not awarded the $20,000 they were seeking for pain and suffering.
Hall was also not entirely pleased with the tribunal decision because it was made clear the other pilots waiting to be reinstated would have to be dealt with on a case-by-case basis.
“I have another 123 clients (all forced to retire by Air Canada) whose cases are before the tribunal,” Hall said. “The decision basically says that human rights law must be applied case by case. The tribunal is saying it can’t remedy problems in the collective bargaining agreement.”
Federal Court hearings on the legality of the collective bargaining agreement begin Nov. 22 after Air Canada and the Air Canada Pilot’s Association appealed the tribunal’s 2009 interpretation of the agreement. The union contends the tribunal was wrong in its interpretation, given earlier Supreme Court of Canada decisions that allowed employers and employees to set a mandatory retirement age in collective bargaining agreements.
Keywords: mandatory retirement