did the respondent's conduct fall within the ambit of S 18(2) of the age discrimination act?
15 I deal first with the question of whether the respondent's impugned conduct fell within the ambit of s 18(2) of the Age Discrimination Act.
16 Ms Keech contended that the respondent had discriminated against her because it had treated her less favourably than it would have treated a younger employee who incurred a workplace injury at the same time as Ms Keech did. This is because, the respondent had ceased making weekly payments to Ms Keech a year after her injury, whereas, the respondent would have continued to make weekly payments to the younger employee after that date.
17 In contending that the respondent's conduct was discriminatory conduct which fell within the ambit of s 18(2) of the Age Discrimination Act, Ms Keech relied strongly on the decision of the Supreme Court of New Zealand in Air New Zealand Ltd v McAlister [2010] 1 NZLR 153 (McAlister).
18 In that case, Mr McAlister was one of Air New Zealand's senior pilots, and was also one of its flight instructors. When Mr McAlister turned 60 years, Air New Zealand demoted him from pilot-in-command to first officer. He also ceased to be a flight instructor because Air New Zealand's policy required that a flight instructor be an aircraft captain able to perform the role of pilot-in-command at all times. Mr McAlister made a complaint of age discrimination against Air New Zealand under the Employment Relations Act 2000 (NZ).
19 Air New Zealand contended that Mr McAlister was demoted because once he reached the age of 60 years, he could no longer fly as a pilot-in-command of a Boeing 747-400 aircraft in the air space of the United States of America. The United States Federal Aviation Administration authority adopted an International Civil Aviation Organisation (ICAO) standard that prohibited a pilot from holding the position of "pilot-in-command" if the pilot had obtained the age of 60 years. Other countries including Hong Kong, New Caledonia and Tahiti had adopted the same ICAO standard.
20 Air New Zealand, in turn, adopted a policy that no pilot who had reached the age of 60 years could hold a position of "pilot-in-command" on Boeing 747 and 767 aircraft while the predominant operation of those aircraft was in two or three territories that had adopted the ICAO standard.
21 It is necessary to record that s 30 of the New Zealand Human Rights Act 1993 (which applied in the circumstances) provided that there would be an exemption from the discriminatory provisions, where, being under a particular age, or in a particular age group, was a genuine occupational qualification for that position, whether for reasons of safety or any other reason. Further, s 35 of that Act precluded the employer from relying upon the s 30 exemption if it was able to make some reasonable adjustment, so that another employee could carry out that part of the older employee's disabling duties.
22 Air New Zealand contended that in assessing whether the conduct was discriminatory on the grounds of age, the proper comparator was not other pilots who had not yet reached the age of 60 years, but other pilots who were also disqualified from flying to the United States of America. Measured against that comparator, said Air New Zealand, it had not discriminated against Mr McAlister on the ground of age.
23 In McAlister, Elias CJ, Blanchard and Wilson JJ found that the proper comparator should be persons who were in the same position as Mr McAlister, but younger than 60 years. At [37] of their reasons, Elias CJ, Blanchard and Wilson JJ observed:
In the present case, if the comparator used is the one which found favour with the Court of Appeal, namely comparison with pilots who cannot fly to the United States for any reason, it proves too much. There would then be no work to do for ss 30 and 35, which are an important part of the statutory scheme concerning age discrimination and introduce carefully stated checks and balances. However, if Mr McAlister's treatment is compared simply with that of a similar pilot of under 60 (of himself age 59, if you like), then, assuming for the moment that the reason for his treatment was his age, the Court can move on to consider the s 30 defence and the s 35 qualification to the defence. If, on the other hand, his treatment is compared with a pilot of under 60 who cannot fly in the United States because he cannot lawfully enter its territory (no visa), the balance of the exercise is tilted too much the other way. The exercise would appear to lead to an obvious result, as the Court of Appeal found, since, freed of any need to come to an accommodation under s 35, Air New Zealand might well demote any pilot who for any reason could not fly its B747 planes to the United States. Not only would there be no opportunity for inquiry in Mr McAlister's case into whether there was a genuine occupational qualification which could not be reasonably accommodated but there would also be no need for an inquiry into whether the direct or indirect reason for Mr McAlister's treatment was or was not related to age. In other words, it would deny any role for the words "or indirectly" in the phrase "by reason directly or indirectly of any of the prohibited grounds". (Footnote omitted.)
24 Ms Keech also referred to the following observations of Tipping J at [51]-[53] in McAlister, in support of her contention:
The second matter concerns the comparator issue. In general terms discrimination by reason of a prohibited ground involves one person being treated differently from someone else in comparable circumstances. The approach of the Court to the comparator issue should be guided by the underlying purpose of anti-discrimination laws and the context in which the issue arises. Anti-discrimination laws are designed, as I have said, to prohibit employment and other relevant decisions from being influenced by any feature which amounts to a prohibited ground of discrimination. Exceptions allow what would otherwise be a discriminatory feature to be taken into account if there is good cause for doing so. A comparator is not appropriate if it artificially rules out discrimination at an early stage of the inquiry. By artificially I mean that the comparator chosen fails to reflect the policy of the legislation, which is to take a purposive and untechnical approach to whether there is what I will call prima facie discrimination, while allowing the alleged discriminator to justify that prima facie discrimination if the case comes within an exception.
In some circumstances the relevant legislative provisions will dictate how the comparator exercise should be undertaken. In the present case, under s 104(1)(a) for example, the comparison is between the circumstances of the complaining employee and those of other employees "in the same or substantially similar circumstances". Subject to any applicable statutory provision, the most natural and appropriate comparator is likely to be a person in exactly the same circumstances as the complainant but without the feature which is said to have been the prohibited ground. That feature must be eliminated from the comparator employee in order to make sense of the comparative exercise.
In the present case that elimination would produce, as the comparator, a pilot in exactly the same circumstances as Mr McAlister but who had not reached the age of 60. That is how I would apply the comparator concept in this case. The effect of doing so is, of course, the same as comparing Mr McAlister's terms and conditions before and after he turned 60. (Footnote omitted.)
25 In my view, the circumstances of the McAlister case are distinguishable from the circumstances prevailing in this case.
26 In the McAlister case, it was within the power of Air New Zealand to decide on its response to the requirements of the countries which had adopted the ICAO standard in relation to pilots who had reached the age of 60 years. Air New Zealand made a decision to adopt and apply an employment policy to Mr McAlister, which directly and adversely affected the terms and conditions of his existing contract of employment, with the consequence that he was subjected to the detriment of a demotion, and was denied the benefit of his existing contractual rights to act as a pilot-in-command and flight instructor.
27 It followed that the policy consideration of prohibiting the making of decisions influenced by age related considerations, which Tipping J identified as underlying antidiscrimination law, were invoked by the conduct of Air New Zealand in deciding to adopt, and apply, its age related policy to Mr McAlister.
28 However, the position of the respondent in relation to Ms Keech is different to that of Air New Zealand in relation to Mr McAlister.
29 At the date of her injury, Ms Keech had no contractual rights to be paid weekly payments in respect of an injury at work. However, at that date, Ms Keech did have a statutory entitlement to weekly payments in respect of an injury suffered at work.
30 Unlike the position in McAlister, where Air New Zealand decided on, and applied, an age related policy, there was no discretion or liberty vested in the respondent to determine whether to pay Ms Keech the weekly payments and for how long those weekly payments should be paid. In commencing to make the weekly payments when it did, and in ceasing to make the weekly payments when it did, the respondent did no more, nor less, than perform its statutory obligation to Ms Keech. Far from subjecting Ms Keech to a detriment, or denying her a benefit, in making the weekly payments to her, the respondent accorded Ms Keech a benefit derived from statute. It was the statute that provided the entitlement, and also circumscribed the extent of the entitlement. Accordingly, in my view, the policy considerations underlying anti-discrimination laws, referred to by Tipping J, seeking to regulate decision-making in, relevantly, the employment field, were not invoked by the circumstances of the respondent performing its compulsory statutory obligation to Ms Keech.
31 The failure to continue to make weekly payments to Ms Keech after 2 February 2008, involved no diminution in Ms Keech's contractual entitlements. I reject Ms Keech's contention that she suffered age related discrimination because it was always open to the respondent to have continued to make the weekly payments voluntarily to Ms Keech, even though Ms Keech never had, at any time, a contractual right to such payments, and her statutory entitlement to such payments had been fully met. In my view, the policy of the Age Discrimination Act is not invoked in those circumstances.
32 Further, the view to which I have come, is not inconsistent with the presence of s 39(4) in the Age Discrimination Act, because there is still work for that section to do. Thus, s 39(4) would still have an effect where an employer makes an employment decision founded on statutory requirement, which has the effect of discriminating on the basis of age. An example of such a decision would be an employer requiring that a person employed as a driver, hold a driver's licence - a statutory requirement which has age related ramifications.
33 It follows, therefore, that, in my view, the better view is that s 18(2) of the Age Discrimination Act has no application to the circumstances of this case. However, it is not necessary to finally determine this issue, because, for the reasons set out below, I am of the view, that, even if s 18(2) did have application to the respondent's impugned conduct, s 39(4) would apply to that conduct, to render that conduct not unlawful.