By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A former pilots’ union president has seen his retirement age-related employment dispute with Bahamasair dismissed “in its entirety” by the Supreme Court.

Captain Joseph Moxey, a 35-year veteran with the national flag carrier, had alleged that it breached his employment contract and the then-prevailing industrial agreement with the Bahamas Airline Pilots Association (BAPA) by preventing him from taking the “mandatory training” necessary to remain a qualified pilot.

He was not given permission to take the training because he had reached the “normal retirement age” of 60 as stipulated by the industrial agreement. However, Captain Moxey argued that this had been raised from 60 to 65 years-old by the newly-enacted Civil Aviation Act 2021 and its accompanying licensing regulations which took effect after BAPA’s industrial agreement was signed.

The former BAPA president, who had also previously served as the union’s vice-president and treasurer, launched legal action on February 22, 2023, alleging that both Bahamasair and BAPA had violated the Employment Act by their non-compliance with the industrial agreement and civil aviation regulatory regime.

Asserting “damage and loss”, he also urged the Supreme Court to order that be allowed to undergo the training that had been scheduled for end-February 2023. Both Bahamasair and BAPA denied and rejected Captain Moxey’s claims, alleging that his “interpretation” of the civil aviation regime was “inaccurate”, and Acting Chief Justice Deborah Fraser backed their position.

Her September 11, 2024, verdict also noted that Captain Moxey was objecting to - and challenging - a 60 year-old retirement age stipulated in industrial agreements he himself had negotiated including the 2018-2022 deal that was sealed when he was BAPA president. And his concerns only appeared to arise when he himself reached the 60 year-old threshold.

Detailing the background to the dispute, Justice Fraser noted that Captain Moxey informed Bahamasair’s managing director, deputy managing director and director of flight operations on November 16, 2022, that the new civil aviation regulatory regime had increased the pilot retirement age from 60 to 65 years-old.

“Captain Moxey also alerted the human resources committee of the Board of Directors of Bahamasair about this purported change on November 25, 2022, who allegedly stated that the matter was to be addressed at a meeting on November 29, 2022,” Justice Fraser recorded.

“By letter dated December 30, 2022, Bahamasair notified BAPA about the purported change in the retirement age. On that same day, Captain Moxey was informed by the manager of training for Bahamasair that his mandatory recurrent training would take place in February 2023 and that Captain Moxey must pay his Transportation Security Administration (TSA) clearance for the training session.

“On January 5, 2023, however, an e-mail from the manager of training was sent to Captain Moxey informing him that he (the manager of training) was directed by the director of flight operations to remove Captain Moxey from the training session and that the initial notice was to be disregarded.”

Captain Moxey “immediately” sought a new training date never received a reply. He reached the 60 year-old retirement threshold on January 17, 2023, and warned “that, if he did not receive the mandatory training by February 28, 2023, he would be disqualified from piloting”.

The former BAPA president was then placed on vacation leave for four weeks from February 13, 2023, pushing him beyond the date when he needed to renew his pilot qualifications. This triggered the legal action, but Bahamasair and the union both argued that the industrial agreement provision noting it could be superseded by legal reforms did not apply in the case of the new Civil Aviation Act.

They asserted that the wording of the regulations “merely allows pilots to fly international flights up to 65 years of age and does not automatically create a new mandatory retirement age”.

“Bahamasair also alleges that there is no mandatory age of retirement for pilots in any legislation, and such retirement age was based on practice, policy and custom of Bahamasair which has been established for many years, and which Captain Moxey - as an employee of Bahamasair - was or should have been aware of,” Justice Fraser added of the airline’s position.

Captain Moxey, who is also a former in-house attorney for Bahamasair, alleged in his witness statement that “he became aware of Bahamasair’s decision to retire pilots at the age of 60 in or about January 5, 2023, which was the same date he was informed that his training was unilaterally cancelled”. The industrial agreement had also expired on December 31, 2022, prior to his training’s cancellation.

“He also stated that, prior to his unilateral retirement, he was performing his duties as a pilot satisfactorily and was never warned or reprimanded,” Justice Fraser said of Captain Moxey, who asserted that “the unilateral decision to retire him was unlawful” due to the new civil aviation age-related regulations he had informed Bahamasair executive management about on July 2021.

But Mark Johnson, BAPA’s current president and also a Bahamasair pilot, asserted that Captain Moxey as his predecessor negotiated and agreed a 60 year-old pilot retirement age in the 2018-2022 industrial agreement despite the union’s members holding a different view.

“BAPA and Bahamasair entered into previous collective bargaining agreements in 2005, 2013 and 2018. During the entering of each of those collective bargaining agreements, Captain Moxey served as president of BAPA,” Justice Fraser said of Mr Johnson’s evidence.

“The retirement age in 2005, 2013, and 2018 was 60 years-old.... Mr Johnson also states that the consistency of the retirement age of 60 years of age was well known to Captain Moxey because he occupied the position of president of BAPA during the negotiations of the last four collective bargaining agreements.

“The Johnson witness statement further provides that, during Captain Moxey’s presidency, BAPA held at least two polls to canvass the members’ views on an appropriate retirement age. The polls were held on June 23, 2011, and the other during Captain Moxey’s presidency between 2002 and 2007,” the Acting Chief Justice continued.

“The results of the polls were consistent in that the wider BAPA membership wanted a higher retirement age than 60. However, during the negotiations towards the 2018 collective bargaining agreement, Captain Moxey did not carry out the wishes of the membership.” Had the retirement age been raised to 65, nine pilots older than Captain Moxey would not have had to retire between 2018 and 2022.

Mr Johnson said a fresh poll of BAPA members, taken on February 14, 2023, on whether to increase the pilot retirement age split the union down the middle with half in favour and 50 percent against. With his casting vote, he backed increasing the retirement age.

Tamara Lightbourne, Bahamasair’s human resources director, said Bahamasair’s and BAPA’s “established principles” required pilots to retire at 60 and this was stipulated in both the industrial agreement - which was not registered - and the airline’s flight operations manual.

Retiring at this age was “the custom” for at least 20 years, and once Captain Moxey hit 60 years-old he was removed from all domestic and international flights while his recurrent training also came to an end. 

At trial, Captain Moxey held to the position that the civil aviation regulatory regime change had increased the pilot retirement age from 60 to 65 years-old. “He admitted that he was aware that past collective bargaining agreements, which he confirmed he played a role in negotiating, expressly stated the retirement age for pilots was 60 years-old,” Justice Fraser said.

“This contradicts the evidence contained in his witness statement where he states: ‘I first became aware of the decision/action of the first defendant in ‘retiring’ pilots at the age of 60 when, in or about January 5, 2023, I was informed by [Bahamasair] that my regular recurrent training was unilaterally cancelled’.”

Justice Fraser added that Captain Moxey also “contradicts his own evidence” by saying he was unaware of the 60 year retirement age when “he was president of BAPA for some ten years and was aware of the terms of several collective bargaining agreements”. He also acknowledged that the retirement age was detailed in the flight operations manual, and he knew of no other pilot who remained with Bahamasair beyond 60.  

The Acting Chief Justice found it was “an established custom and practice” for Bahamasair to retire pilots at 60. And, because the industrial agreement had expired at end-2022 was no longer effective when Captain Moxey’s dispute arose with Bahamasair in early 2023, she found the clause permitting the civil aviation regime changes to supersede the pilot retirement age did not apply.

And, even if the agreement was in effect, Justice Fraser said the retirement age increase allowed by the civil aviation regulations was “a discretionary exercise” and not mandatory. “I do not accept the claimant’s counsel’s submissions that the mandatory retirement age has been changed,” she ruled.

“It remains unchanged unless and until a new collective bargaining agreement is prepared, executed and registered or pilots employed at Bahamasair have an express term in their respective contracts stating that the age of retirement is no longer 60. 

“The mandatory age of retirement for Bahamasair pilots, therefore, remains 60 years of age unless and until a new collective bargaining agreement has been executed or each individual pilot’s separate employment contract says otherwise.”

Just such an industrial agreement, which raises the retirement age for Bahamasair pilots to 65, was signed with BAPA back in March 2024. The agreement is effective until 2027, but comes too late to help Captain Moxey.