I’ll leave it to the lawyers to make the arguments. I am simply restating the explanation of the facts and the law that was provided to our group.dukepoint wrote:Geez...that's pretty vague.....sometime after but not before......hope you're not using that arguement in front of a judge.
Air Canada was supose to just blindly follow which other Canadian airlines leed in extending the agreed upon retirement age? Jazz??? Westjet??? Are you aware of the reason it was changed at these carriers and under what circumstanses???
Vague or not, the point is, it is up to the employer, prior to terminating the employment of someone, to ensure that that termination is in compliance with the law. The onus does not rest with the employee to show age 60 was not the normal age of retirement.
Therefore, Air Canada had to demonstrate to the tribunal that its pilots, the only pilots forced to retire at age 60 after 2005, were the majority of airline pilots in Canada. According to the federal court, if failed to do so when it failed to recognize the pilots from its main competitors as being in the pool of comparator pilots used to assess the normal age of retirement.
Air Canada is now trying to persuade the court of appeal that the finding of the federal court should not be upheld.
Remember though, its position before the tribunal was that pilots from WestJet, AirTransat and SkyService were not to be considered as comparator pilots to Air Canada pilots even though they flew similar aircraft to similar destinations, but that pilots from the smaller carriers such as those operating float planes in the arctic should be the pilots used for comparators. Go figure. Do you reckon that the court of appeal will buy that argument?
It is irrelevant to the appeal why the other carriers chose to move off age 60. Age discrimination was prohibited but termination at the normal age of retirement was permitted as an exception to the rule. All that matters for the purpose of this case is that Air Canada showed that its termination of the pilots met the exemption. If it didn’t, there was no legal justification for terminating their employment.
It’s almost like “buyer beware”. Before you commit yourself (or your company) to a course of action, you have a responsibility to ensure that the action about to be taken will be one that won’t come back to haunt you later. And it doesn't matter whether nobody held you accountable in the past. Every single termination of employment was possible only so long as the mandatory retirement exemption was applicable.
That means that an individual assessment should have been carried out for each pilot about to be terminated any time after the numbers started to change, and especially before pilots forced to retire at age 60 moved into the minority.