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[2018] ZALAC 44
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Joffe t/a J Air v Commission for Conciliation Mediation and Arbitration and Others (JA84/2017) [2018] ZALAC 44; [2019] 1 BLLR 1 (LAC) (7 June 2018)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no: JA84/2017
In the matter between:
BRIAN JOFFE t/a J
AIR Appellant
and
THE COMMISSION FOR
CONCILIATION
MEDIATION &
ARBITRATION First
Respondent
LARRY SHEAR
N.O. Second
Respondent
G.P.
HARRISON Third
Respondent
Heard: 20 March 2018
Delivered: 07 June
2018
Summary: Normal
retirement age for a co-pilot of an aircraft engaged in international
commercial air transport operations. Regulations
prohibit pilots
engaged in international commercial air transport operations who have
attained the age of 60 from flying - such
pilot may be allowed to fly
if he or she is a member of a multi-pilot crew and is the only member
of the multi-pilot crew who has
attained the age of 60 or if
authority of a foreign state has given permission for that pilot to
be a member of the aircraft flight
crew notwithstanding his or her
age
Held that, the
regulations do not contain a normal retirement age for a co-pilot –
further that the employer had not considered
the employee’s
suggestion and was presented with a
fait
accompli
–
Labour Court’s judgment upheld appeal dismissed with costs.
Coram: CJ Musi JA,
Jappie AJA and Savage AJA
JUDGMENT
MUSI JA
[1] This appeal concerns
the normal retirement age for a co-pilot of an aircraft engaged in
international commercial air transport
operations. The appeal is with
the leave of the Labour Court (Steenkamp J).
[2] The appellant is a
local and international commercial air transport operator. The third
respondent (Harrison) was employed by
the appellant as a co-pilot.
The chief pilot was Mr David Pratt (Pratt). The latter commenced his
employment with the appellant
on 1 June 2005 and the former on 13
June 2005. They both turned 60 during 2015. Harrison turned 60 on 23
January 2015 and Pratt
on 29 May 2015.
[3] It
is common cause that their employment was subject to the South
African Civil Aviation Regulations (SACAR).
[1]
Part
61.01.11 of the regulations provide as follows:
‘
(1)
A holder of a pilot licence who has attained the age of 60 years may
not act as pilot of an aircraft engaged in international
commercial
air transport operations, except as a member of a multi-pilot crew
and provided that such holder is the only member
of the multi-pilot
crew what has attained the age of 60 years or where the relevant
authority of a foreign state has given permission
for a pilot to be a
member of the aircraft’s flight crew notwithstanding his or her
age.
(2)
A holder of a pilot licence with has attained the age of 65 years may
not act as PIC of an aircraft engaged in international
commercial and
transport operations.’
[4] Pratt and Harrison
were the only pilots in the appellant’s employ. The fact that
they turned 60 in the same year created
a dilemma for the appellant’s
business because of the provisions of the aforementioned Regulations.
[5]
In January 2014, Pratt informed Harrison that the latter’s
license would not be renewed in 2015 because the appellant
is
thinking of employing someone else. Subsequent to this discussion,
the appellant sent the following message to Harrison via
his Short
M
essage
System
(sms):
‘
Hi
Gary, hope you are well. Firstly, I apologise for the manner in which
David dealt with what I consider to be a very sensitive
matter. I
hope we can have a cup of tea on our return. I am sure you however
understand the dilemma. I assure you that your salary
for 2014 is
assured and that in 2015 you (sic) will continue to keep you current
in order to enable you to fly on charter in 2015.
This, I understand,
Dave never conveyed. So we will train three pilots next cycle. I was
hoping to chat to tomorrow with () Training
(sic). I am really sorry
and hope you are not too upset with me. Promise I will not just drop
you.’
[6] During 2015, Harrison
met with the appellant and suggested that the latter use a Pick ‘n
Pay pilot because Pick ‘n
Pay had a pool of pilots. If
implemented, the suggestion would have entailed that they rotate. One
of them (Pratt or Harrison)
would always fly with one of the pool
pilots. The appellant intimated that he would discuss the suggestion
with Pratt. This was
never done. When Harrison found out that his
suggestion was not discussed with Pick ‘n Pay’s chief
pilot, he sent an
e-mail to the appellant informing him that Pratt
did not discuss his suggestion with Pick ‘n Pay’s chief
pilot. The
appellant thanked him for bringing it to his attention and
requested Harrison to leave it to him because he would deal with.
Nothing
happened. He kept asking Pratt whether the appellant had made
up his mind but could not get a clear answer.
[7] On 4 May 2015, he had
a meeting with Pratt. Pratt informed him that the appellant had
employed another pilot on 1 May 2015 and
that his (Harrison)
contractual three months’ notice period was effective from 1
May 2015. His last day in the appellant’s
employ would be on 31
July 2015. The new pilot would be undergoing training from 1 May 2015
to 31 May 2015, and would officially
commence with his duties on 1
June 2015.
[8] Pratt recorded the
minute of the meeting as follows:
‘
The
objective of the meeting was for Pratt to formalise the termination
of employment of G Harrison. This was due to the known operational
requirements of SACAR part 61.01.11. Harrison’s employment
would be terminated in accordance with his letter of employment
dated
1 June 2005. Letter of employment state employment may be terminated
for operational reasons (sic).
Harrison
was advised he was given three a months’ notice period (sic).
After that period his services would be used on an
ad hoc basis
should the need arise while he was still simulator qualified on the
aircraft. As he had completed simulator training
at Mr Joffe’s
expense in March 2015, he would work for us until the end of March
2016 as, if and when needed by our operation
(sic). This was also
depend
e
nt
the flight being a local flight of meaning within the border of South
Africa in accordance with SACAR part 61.01.11. (sic).
Harrison
acknowledged he understood all of this as we had discussed the matter
on several occasions during the previous year (sic).
At the beginning
of 2014 during a meeting with Mr Joffe present (in Mr Joffe’s
office) the matter was also discussed but
as it was still more than
12 months before SACAR 61.01.11 would affect the operation, the issue
was not pursued further at that
time (sic).’
[9] The appellant had a
scheme in place in terms of which the two pilots were each paid 25c
for each kilometre flown. Harrison received
his share in the form of
a lump sum payment of R220 000.
[10] Harrison was
dissatisfied with the manner in which his service was terminated. He
referred the dispute to the first respondent.
Conciliation failed. He
referred the dispute to arbitration. He characterised the dispute as
a “substantially and procedurally
unfair dismissal related to
operational requirements”.
[11] The arbitrator found
that the fact that the appellant was unable to continue to employ
Pratt and Harrison, beyond May 2015,
because they respectively
attained the age of 60 was an operational requirement. He further
found that Harrison’s employment
was terminated due to the
appellant’s operational requirements and concluded that the
appellant did not comply with the provisions
of section 189 of the
Labour Relations Act 66 of 1995 (the Act).
[12] He found that
Harrison was dismissed and that the dismissal was substantively and
procedurally unfair. He ordered the appellant
to pay Harrison the
equivalent of three months’ salary as compensation and to pay
him severance pay.
[13] The appellant
launched a review application against the award. In the Labour Court,
the appellant contended that Harrison’s
employment was
terminated by operation of law and not because of his operational
requirements. The Labour Court rejected the appellant’s
argument and found that the arbitrator’s award was reasonable.
[14] The appellant
contended before us that the Labour Court’s conclusion is
wrong. He contended that the Labour Court should
have found that
Harrison reached normal retirement age as regulated by Part 61.01.11
of the SACAR. He submitted that Harrison was
not dismissed based on
his (appellant’s) operational requirements. Mr Whittington, on
behalf of the appellant, conceded that
section 189 of the Act was not
applied. He, however, argued that there was no need to apply section
189 because Harrison’s
employment was terminated in terms of
section 187(2)(b) of the Act, that is, because he reached the normal
retirement age for a
co-pilot.
[15] Mr Cook, on behalf
of Harrison, contended that the regulations do not determine the
normal age of retirement for a co-pilot.
He further contended that
the appellant’s reliance on section 187(2)(b) was an
afterthought because Pratt informed Harrison
that the reason for his
dismissal was the appellant’s operational requirements and in
the tax directive sought from SARS,
the reason for Harrison’s
dismissal was indicated as severance benefit/retrenchment.
[16] Section 187(2)(b) of
the Act reads as follows:
‘
(2)
Despite subsection (1) (f) –
(a)
a
dismissal may be fair in the reason for dismissal is based on an
inherent requirement of the particular job;
(b)
a
dismissal based on age is fair if the employee has reached the normal
or agreed retirement age for persons employed in that capacity.
’
[2]
[17] It is common cause
that the parties did not agree on a retirement age. The appellant
also did not have a normal retirement
age for its pilots. The
appellant only relies on the provisions of the regulation for his
contention that 60 years was the normal
retirement age. What is a
normal retirement age?
[18]
In
Rubin
Sportswear v SACTWU and Others,
[3]
Zondo
JP (as he then was) investigated the different contexts in which the
adjective “normal” and the adverb “normally”
were used in different statutes in order to discern what “normal”
means in the context of section 187(2)(b). He came
to the following
conclusion:
‘
[19]
It seems to me that the word "normal" as used in section
187(2)(b) really means what it says. It means that which
accords with
the norm. However it is important to bear in mind that that word is
used in relation to persons employed in the same
capacity as the
person whose dismissal on the basis of having reached normal
retirement age is in issue. Section 187(2) (b) must,
therefore, not
be read as if it says: "Despite subsection (1)1(f), a dismissal
based on age is fair if the employee has reached
the normal or agreed
retirement age." It includes the words at the end "for
persons employed in that capacity".
What the section does not
make clear is whether the words "persons employed in that
capacity" refer to such persons who
are in the same employer's
employ or whether it also refers to persons who are employed in the
same capacity by other employers
in the same industry or in general.
[20]
It seems to me conceivable that one employer could have different
normal retirement ages for different categories of employees
within
its workforce. There may, for example, be different normal retirement
ages for professionals and artisans. In such a case
the employer
cannot retire an employee on the basis of a normal retirement age
applicable to employees employed in a capacity different
from that of
his own. In other words, where an employer seeks refuge in the
provisions of section 187(1)(b) against a claim of
unfair dismissal
and his defence is that the employee had reached normal retirement
age, he must show not only that the employee
had reached normal
retirement age but that the retirement age is normal to employees
employed in the same capacity as the employee
concerned.
’
[4]
I
agree.
[19] The regulations
define a “co-pilot” as follows:
‘
co-pilot
means a licensed, type-rated pilot required by these regulations to
serve in any piloting capacity other than as PIC
[5]
,
but excluding a pilot or is on board the aircraft for the purpose of
receiving flight instruction.’
A pilot-in-command (PIC)
is defined as “the pilot designated by the operator as being in
command and charged with the safe
conduct of a flight, without regard
to where the or not he or she is manipulating the controls”. It
is common cause that
Pratt was the PIC.
[20] In order to properly
grasp what the regulations regulate, one must discern what it says in
order to understand what it does
not say. It says, firstly, that a
pilot who has attained the age of 60 years may act as a pilot of an
aircraft engaged in international
commercial air transport operations
if he or she is a member of a multi-pilot crew and is the only member
of the multi-pilot crew
who has attained the age of 60. Secondly, a
pilot who has attained the age of 60 may act as a pilot of an
aircraft engaged in international
commercial air transport
operations, where the relevant authority of a foreign state has given
permission for that pilot to be
a member of the aircraft flight crew
notwithstanding his or her age.
[21] The regulations do
not prohibit a pilot who has attained the age of 60 to fly an
aircraft engaged in international commercial
transport operations. It
permits such pilot to be a member of a multi-pilot crew if certain
conditions are met. The conditions
are, firstly, that the other pilot
must be younger than 60 years of age and, secondly, irrespective of
the age of the second pilot,
the pilot who is above the age of 60 may
be part of a multi-pilot flight crew if the relevant authority of a
foreign state has
given permission for the pilot to be a crew member.
Foreign authority is defined, in the regulations, as “the
authority of
a foreign State that issues the air operator certificate
and oversees the operations of its air operators.”
[22] The regulations
expressly prohibit a pilot who has attained the age of 65 years to be
a pilot-in-command of an aircraft engaged
in international commercial
air transport operations. There is, however, no prohibition against a
65-year old co-pilot being a
member of a multi-pilot crew if the
other pilot is younger than 60 years. The regulation therefore
determines the normal retirement
age for a PIC of an aircraft engaged
in international commercial air transport operations. It contains no
such provision for a
co-pilot.
[23] The argument that
the normal retirement age for a co-pilot is, in terms of the
regulations, 60 years is absurd. This is so
because it would mean
that a PIC who has more responsibilities and is responsible for the
safe conduct of a flight may retire at
65 whereas a co-pilot who
generally has lesser responsibilities should retire at the age of 60
years. In my view, the regulations
do not contain a normal retirement
age for a co-pilot. At best it sets conditions for a co-pilot to meet
before such pilot may
be engaged in international commercial air
transport operations. I hasten to mention that the conditions only
apply to a co-pilot
who is engaged in international commercial air
transport operations and not to a pilot who is engaged in local
commercial air transport
operations.
[24] The appellant’s
reliance on section 187(2)(b) of the Act is therefore misplaced. It
is glaringly ironic that the appellant
allowed Harrison to fly with
Pratt after the former had attained the age of 60. That on its own
belies the fact that the appellant
genuinely thought that the normal
retirement age for a co-pilot engaged in international commercial air
transport operations is
60 years. It is not in dispute that
Harrison’s employment was terminated. It is also not in dispute
that no alternatives
to the termination of Harrison’s
employment were explored. Harrison made concrete proposals, which, if
implemented would
have saved his job. Those were not considered.
[25]
When Harrison and Pratt met on 4 May 2015, the appellant already
engaged Harrison’s replacement. The termination of Harrison’s
employment was a
fait
accompli
.
In fact, Harrison, Pratt and the appellant accepted that one of the
two pilots had to go. They were both affected employees, yet
the one
was used as the harbinger of bad news to the other. There was no
attempt to consult with Harrison before his dismissal;
he was simply
informed about the appellant’s decision.
[26] The court
a quo
correctly found that this is one of those cases where the procedural
and substantive unfairness of the dismissal are intertwined.
It
properly rejected the appellant’s contention that the
arbitrator should have found that the dismissal was substantively
fair but procedurally unfair. The court
a quo
’s finding
that the arbitrator’s award is one which a reasonable
decision-maker could reach is unassailable. The appeal
ought to be
dismissed.
[27] There is no reason
in law or fairness why a costs order should not be made in favour of
the successful party.
[28] I, accordingly, make
the following order:
The appeal is dismissed
with costs.
_______________
C.J. Musi JA
Jappie AJA and Savage AJA
concur with CJ Musi JA.
APPEARANCES:
FOR THE APPELLANT: Adv
Whittington
Instructed by Fluxmans
Inc
Johannesburg.
FOR THE RESPONDENT: Adv
Cook
Instructed by Howes Inc
Johannesburg.
[1]
‘
Civil
Aviation Regulations 2011, GN R.425,
GG
35398, 1 June 2012’ The Regulations were promulgated by the
Minister of Transport in terms of
section 155
(1) of the
Civil
Aviation Act 13 of 2009
.
[2]
Section 187
(1)
(f) provides as follows:
‘
A dismissal
is automatically unfair if the employer, in dismissing the employee,
acts contrary to
section 5
or, in the reason for the dismissal is –…
(f) that the employer unfairly
discriminated against an employee, directly or indirectly, on any
arbitrary ground, including,
but not limited to race, gender, sex,
ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience,
belief, political opinion,
culture, language, marital status or family responsibility.’
[3]
[2004] 10 BLLR 986
(LAC).
[4]
Ibid at para [19]
and [20].
[5]
Pilot-in-command.