Air New Zealand Limited v Rush CA197/03 [2003] NZCA 267 (21 November 2003)

Last Updated: 5 February 2019

IN THE COURT OF APPEAL OF NEW ZEALAND

CA197/03

BETWEEN AIR NEW ZEALAND LIMITED
Applicant

AND SIDNEY HAROLD RUSH
Respondent

Coram: Gault P Tipping J Glazebrook J

Counsel: K M Thompson for Applicant
R R McCabe for Respondent

Judgment: 21 November 2003

JUDGMENT OF THE COURT DELIVERED BY GAULT P

[1] This is an application by Air New Zealand for leave to appeal to this Court from a judgment of the Employment Court delivered by Judge Colgan on 17 September 2003. Section 214 of the Employment Relations Act 2000 permits an appeal by leave on a question of law that is of general or public importance. The parties have requested that the application for leave be dealt with on the papers.
[2] Mr Rush was employed by Air New Zealand as a pilot. He reached the age of 60 at the end of November 2001 which meant that under some international and United States restrictions he could not continue as a captain flying in air space controlled by those jurisdictions. However, the age restriction does not apply within New Zealand, Australia and some Pacific Island regions. The practical effect is that a pilot cannot remain as a captain on 747 or 767 aircraft once he or she reaches the age of 60 years. Such pilots can apply for positions (including that of captain) on 737 aircraft that operate predominantly in New Zealand and Australia. They can apply also for positions other than as captain on aircraft flying in the restricted jurisdictions.
[3] Approaching his sixtieth birthday Mr Rush lodged a standing bid for a vacancy as a first officer on 747 aircraft and excluded from that bid other positions not affected by the age restrictions.
[4] Air New Zealand wrote to Mr Rush on 29 November confirming that he would take annual leave from 3 December 2001 to 27 February 2001 and would then be on “retirement leave” (long-term service leave) from 28 February to 28 April 2002. The letter then said that his last day of employment would be 28 April 2002 unless he was successfully appointed to a 747 first officer position prior to that date. This advice was confirmed in substance in letters dated 14 December 2001 and 16 January 2002 from the airline. Mr Rush maintained that he did not wish to retire and had not told the airline that he did (though this was a matter in dispute). Mr Rush was not advised of other pilot vacancies that he would be eligible to apply for. No 747 first officer position became available and Mr Rush’s employment ended on 28 April 2002.
[5] On appeal from the Employment Relations Authority the Employment Court upheld the finding that Air New Zealand had unjustifiably disadvantaged and unjustifiably dismissed Mr Rush from his employment by not treating him fairly and reasonably and had discriminated against him (by reason of age), by not canvassing with him other pilot roles for which he would have been eligible. The Court went further finding that the airline had also dismissed him unjustifiably by not giving him the required minimum contractual notice of determination of his employment. The Authority’s award of $35,000 distress compensation was reduced to $15,000. Mr Rush was, however, held entitled to a remedy for the unjustified dismissal by short notice and was awarded three months remuneration by way of compensation. The Judge considered that Mr Rush had been more successful in the matter than had Air New Zealand and so would be entitled to an order for costs, though the quantum was to be resolved by mediation if possible.
[6] Air New Zealand seeks leave to appeal and has notified the following matters said to raise questions of law:

1. Where Air New Zealand elected to have a matter heard by the Employment Court by way of a non-de novo hearing relating to parts only of a determination, and Mr Rush did not elect any challenge, did the Employment Court have jurisdiction, within the scope of the challenge elected by Air New Zealand, to consider and make an additional finding not made by the Authority that Mr Rush was unjustifiably dismissed based on inadequate notice?
2. Was the written notice of termination given by Air New Zealand to Mr Rush on 14 December 2001 ineffective in law as notice of termination for the purposes of his employment agreement?
3. Where an employer is required to provide notice of termination, should that notice period automatically be a paid notice period, and in this case, calculated at a minimum of 747-400 pilot rates of pay even though the employee could not operated in that role?
4. Where parties have agreed that costs should be reserved, should the Court nonetheless determine an entitlement to an order for costs (but not quantum), without having heard further from the parties?

[7] On appeal from the Employment Court this Court is excluded from reviewing findings of fact or determinations on the construction of employment contracts. As already mentioned, we are required to focus upon questions of law arising from the Employment Court decision and to limit the grant of leave to those of general or public importance.
[8] The first matter said to give rise to such a question is directed to a narrow point of jurisdiction of the Employment Court. The short notice ground was said by the Judge to have been accepted by counsel for Air New Zealand as having been clearly raised before the Authority and the Employment Court. Whether that was so is a matter of fact. We do not see any question of law directed to the finding made by the Employment Court on that basis. To the extent that the matter might be one of entitlement to provide an additional remedy in respect of the same dismissal held to have been unjustifiable, we are unable to see that it gives rise to a significant question of law. Further it is of no wider importance than to the parties. The matter of cross-appeals now appears to be addressed in a practice note issued by the Chief Judge.
[9] The second and third matters appear to turn on points of construction of the relevant employment contract and their application to the particular facts.
[10] The fourth question arises from the fact that the parties apparently requested the Judge to reserve the question of costs. He indicated which party was entitled to costs but did not fix quantum. We do not consider that such a course in the discretionary area of costs can give rise to any significant question of law.
[11] Accordingly we are not persuaded that the criteria for the grant of leave to appeal are made out and leave accordingly is refused.
[12] Mr Rush is entitled to costs on the application which we fix at $2000 together with disbursements including the reasonable travel and accommodation expenses of counsel approved, if necessary, by the Registrar.

Solicitors:
G L Norton, Auckland, for Applicant
R R McCabe, Auckland, for Respondent