The Tribune

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” for the second time by a Bahamian court.

The Court of Appeal, in a unanimous September 1, 2025, verdict dismissed all 16 grounds advanced by Captain Joseph Moxey, a 35-year veteran with the national flag carrier, who alleged it breached his employment contract and the then-prevailing industrial deal with the Bahamas Airline Pilots Association (BAPA) by preventing him from taking the “mandatory training” required 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 its vice-president and treasurer, and was once Bahamasair’s in-house attorney, launched legal action on February 22, 2023, alleging that both Bahamasair and the pilots’ union 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 in the Supreme Court.

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.

Dissatisfied with that verdict, Captain Moxey launched what was described by the Court of Appeal as a “somewhat unconventional” challenge by submitting a “rolled-up” submission that did not link his arguments to the specific appeal grounds being advanced.

“The appellant urges this court to set aside the learned judge’s findings on the basis that, notwithstanding the express terms of employment contract and the long-established custom, policy and practice of [Bahamasair] stipulating a normal retirement age of 60 years for pilots, he is entitled to remain employed until the age of 65,” the Court of Appeal said.

“He relies on civil aviation regulation LIC.070(b) which, in his view, establishes 65 as the maximum age for pilots engaged in international commercial operations. The first respondent [Bahamasair] strongly refutes this submission and contends that to adopt such a position would amount to the fatal error in law.

“It maintains that the regulatory framework does not impose a mandatory retirement age but merely prescribes the outer limits of eligibility to operate in specific flight capacities. The first respondent invites the court to uphold the learned judge’s interpretation of CAR LIC regulations and to dismiss these grounds of appeal as misconceived.”

The Court of Appeal accepted this invitation, with appeal justice Indra Charles writing: “In my judgment, I find no merit in the appellant’s contention that Regulation CAR LIC.070(b) confers upon him an entitlement to remain employed until the age of 65. The regulation, properly construed, does not create a right to continued employment, nor does it mandate a retirement age of 65.

“Rather, it defines the upper operational limit for pilots performing international commercial air transport services as members of a multi-pilot crew. It is permissive in scope, allowing but not requiring the first respondent to extend a pilot’s active service up to that age, subject to regulatory and operational conditions.

“The appellant’s argument incorrectly treats a regulatory maximum as a compulsory employment term. In contrast, the learned judge’s interpretation was legally sound. As the first respondent correctly submits, the regulation sets boundaries on permissible flight operations - not terms of employment,” the Court of Appeal continued/

“The contractual retirement age of 60 years, long observed by the first respondent as a matter of custom, policy and practice, was not displaced or rendered unlawful by the regulatory scheme.” The Court of Appeal thus described Captain Moxey’s argument as “misconceived”.

And, given that BAPA’s 2018 industrial agreement had no binding legal effect because it had not been duly registered, Captain Moxey was unable to rely on any of its provisions relating to extending pilot retirement age to 65.

“The appellant cannot selectively rely on parts of an unregistered and expired collective agreement to support his claim, while simultaneously seeking to avoid the statutory consequences of its non-registration. Having placed reliance on the 2018 agreement to support his position, he cannot now assert that the legal framework governing its effect is immaterial,” the Court of Appeal added.