The Advocate | Issue 368 | November 2025

The recent Employment Court decision in McGearty v Air New Zealand Ltd [2025] NZEmpC 223 considered whether laws and Air New Zealand policies preventing pilots from flying certain aircraft after the age of 65, amounted to age discrimination. 

Captain McGearty was employed by Air New Zealand as a pilot, at the rank of Captain of the Boeing 777, the most senior line pilot. 

Air New Zealand maintained a policy which was in place to ensure it complied with International Civil Aviation Organisation (“ICAO”) rules. The ICAO rules placed restrictions on the age of pilots for international flying. The ICAO rules cause tension with New Zealand law in terms of the prohibition of age discrimination in employment.

The Human Rights Act 1993 provides that it is unlawful for an employer to retire an employee or require or cause the employee to retire or resign. However, this is subject to the qualification that it will not be unlawful where being of a particular age is a genuine occupational qualification for the position, whether for reasons of safety or for any other reason.

New Zealand has filed a difference with the rules, in that it rejects the standard. An "ICAO difference" is a declaration by a state that it cannot comply with a specific ICAO standard, and it will operate under its own rules instead. This means that New Zealand pilots over the age of 65 are permitted to fly within New Zealand territory and to other territories which have also rejected the standard (such as Australia, Tonga, Niue and Apia, and Samoa). Pilots over 65 cannot fly through airspace which applies the standards. This allows Air New Zealand pilots to fly after the age of 65, but only on certain routes and this consequently restricts the type of aircraft they can fly. 

Therefore, when pilots reached 65, as agreed under the Collective Employment Agreement, Air New Zealand would give pilots the option of either: 

• moving to unaffected fleets (generally only the A320 fleets), which would require a pay reduction of approximately $80,000 per annum in base pay; or 
• agree to retire, and claim retirement leave and annual leave. 

Captain McGearty challenged the policy and rules, and sought to continue flying Boeing 777s on international routes. He claimed that the rostering system could be arranged so that he could continue flying wide-body aircraft on routes that complied with the requirements of the ICAO rules and the difference filed. While this was dealt with, Captain McGearty initially took a period of annual leave and then sick leave, until he was placed on leave without pay.

The Court found that although the age restriction in the Standards constituted a genuine occupational qualification, Air New Zealand was required to make accommodation or adjustments, provide those did not require an unreasonable disruption of their activities (i.e. an assessment of “what reasonable accommodations could be made”). This required Air New Zealand to make an individual and fact-specific analysis of Captain McGearty’s circumstances, including whether he could continue flying B777s within compliant territories. 

Air New Zealand argued it could not create bespoke rostering for Captain McGearty as that would breach the rostering provisions of the collective agreement, he could not be rostered in accordance with those provisions, and the agreed accommodation of offering for him to transfer to the A320 fleet applied. The Court noted there was no evidence that Air New Zealand actually investigated whether there were sufficient destinations for Captain McGearty to fly to, as required under the collective agreement. Instead, discussion on Captain McGearty’s situation was subsumed into a broader discussion regarding all age restricted pilots generally, and no individual assessment was made.

The Court found that Air New Zealand had discriminated against Captain McGearty unlawfully on the basis of his age. It failed to assess and consider reasonable accommodations such as tailored rostering which could have kept him employed as a Captain, and this would have been a reasonable accommodation in the circumstances. Further, that Captain McGearty was unjustifiably disadvantaged in his employment by being placed on leave without pay and Air New Zealand breaching the terms of the collective agreement. 

The Court further noted: 

“What constitutes reasonable accommodation is fact dependent and may evolve over time. A policy that may have fulfilled legal obligations at one time may no longer be compliant for present purposes given technological advances, commercial developments, and changes in legislative and regulatory requirements. Over time, these changes may reduce the impact of what previously amounted to an unreasonable disruption.”

This decision provides a useful reminder that policies and agreements should be regularly reviewed and updated to ensure they are current and comply with the law. When dealing with a matter relating to a prohibited ground of discrimination (such as age, sex, religious belief, disability etc.) employers should also carefully consider what reasonable accommodations could be made against the individual, and not apply a blanket rule to all situations.