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[2018] ZALAC 59
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Brian Joffe t/a J Air v Commission for Conciliation Mediation & Arbitration and Others (JA84/2017) [2018] ZALAC 59 (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.