Legal insight and perspective from the Steinbergs Team
Published: August 6, 2024
Category: Labour and Employment
In Canada, our laws stand as a bulwark against unfair treatment of older workers. These protections are not just legal formalities but are grounded in the belief that age and experience bring invaluable insights and wisdom. Should an older employee be dismissed due to age or health, they may have the right to be reinstated with back pay. This reflects a broader legal commitment to fairness and respect. As Shakespeare wisely noted, "The age of a man is like the autumn of the year," emphasizing that, like autumn, age brings with it a wealth of experience and a shift in roles that must be acknowledged and respected.
For older CEOs who may be struggling to lead effectively, the Board of Directors must step up. Their duty extends beyond mere oversight; they are legally obligated to address these issues with gravity and sensitivity. This includes calling for medical evaluations and planning for succession with foresight and care. Whether in a public or private entity, directors must ensure that the CEO’s ability to steer the company remains intact, balancing respect for their experience with the organization’s ongoing needs.
While employees are not required to disclose health issues, employers have a moral and legal obligation to ensure a safe workplace. This means removing individuals from roles where their health might pose a risk to others. For instance, if a bus driver or airline pilot's health could endanger passengers, it’s imperative to reassign them to a safer role. Employers must engage in compassionate, meaningful dialogues to find reasonable accommodations, often with guidance from medical professionals like occupational therapists.
When older employees lose their jobs, they often receive higher severance pay. However, if they believe their dismissal was discriminatory, they can challenge it. With strong legal representation, these individuals may seek reinstatement through the Human Rights Tribunal and claim additional compensation for damages like injury to dignity and self-respect.
Consider the landmark case of Fair v. Hamilton-Wentworth District School Board, where Sharon Fair endured a decade-long struggle but ultimately achieved reinstatement with full back pay (resulting in over 10 years of full pay). Ms. Fair's health precluded her from performing certain roles and her employer had refused to accommodate her resulting in the loss of employment. This case demonstrates the potential for significant outcomes when human rights violations occur, showcasing the power of perseverance and effective legal advocacy.
Discrimination doesn’t need to be intentional to be considered illegal. What matters is whether discrimination occurred, regardless of intent. Often, direct evidence is elusive, so decision-makers must piece together indirect evidence to determine if discrimination has taken place. Even if age or health is just one of many factors, it can still be deemed discriminatory.
When discrimination is proven, employers can deny accommodations and terminate the employee if providing those accommodations would cause undue hardship to the employer. The law focuses on three key considerations:
Other factors cannot be used to determine undue hardship. When an employer is successful in demonstrating that accommodating an employee would cause undue hardship, they would be absolved from paying damages under the Human Rights Code such as back pay and compensation for injury to dignity. These employees are therefore only entitled to severance pay.
Older employees typically receive higher severance pay, but this is not always the case. For example, in Flack v. Whiteoak Ford Lincoln Sales Limited, a 61-year-old finance manager received only two months’ notice due to his brief tenure and the nature of his role. The court’s decision reflected an assessment of his actual responsibilities versus his job title. While Mr. Flack's job title was finance manager, he was in reality a sales associate selling financial products for a car dealership.
Older employees bring a profound well of wisdom and experience to the workplace. As Cicero aptly stated, “For there is assuredly nothing dearer to a man than wisdom, and though age takes away all else, it undoubtedly brings us that.” To effectively harness this valuable asset, businesses should:
By addressing these factors with compassion and legal savvy, Canadian businesses can better navigate the evolving needs of an aging workforce, respecting the invaluable contributions of older executives while maintaining compliance with legal requirements. After all, ‘it is never too late to be what you might have been.
Tahir is the Vice President of the Employment Lawyers Association of Ontario and regularly advises employers and employees in all manner of employment, labour and human rights issues.
