A Cautionary Tale When Dismissing an Older Employee

Previously printed in the CCH’s Focus on Canadian Employment and Equality Rights Newsletter.

Aging and the lack of capacity to perform work can be inextricably linked but the dismissal of an older worker, even where there are performance concerns, must be handled with extreme care to avoid exposure to human rights complaints.

An employer wishing to dismiss an older employee would be wise to thoroughly document any performance issues or concerns, and to communicate those concerns to the employee in question, before contemplating the termination of the employment relationship. Failure to do so may result in a human rights complaint and an award for damages due to discrimination based on the prohibited ground of age, as the employer discovered in Paul Price v. Top Line Roofing Ltd., 2013 BCHRT 306 (Tyshynski).

Background

Top Line Roofing Ltd., a locally owned and operated roofing company, hired Paul Price in July 2008 as a journeyman roofer, and terminated his employment four years later. Mr. Price had worked for Top Line off and on over a 15-year period and had thirty years’ experience in the industry.

In April 2012, three months before his job with Top Line ended, the company hired a journeyman in his 40s and two young apprentices. In July 2012, Top Line laid off the two oldest journeymen, one who was in his sixties and Mr. Price, who was 53 years old at the time. The reason given for the dismissal was a shortage of work, despite summer typically being the busiest time of year for roofing companies and the fact that the recent hires were not the first to be laid off, as was the usual practice.

Findings of Fact

Mr. Price was the sole witness in his complaint. The employer called four witnesses at the hearing, all of whom were in its employ at the relevant time. Perhaps not surprisingly, the company’s witnesses testified that the employer did everything it could to keep its journeymen roofers employed during the slow winter months, and Mr. Price agreed that Top Line had kept him employed through periods of work shortages in the past.

On the same day in 2012 when Mr. Price was laid off, three other employees also lost their jobs. One was a journeyman in his 60s and the other two were labourers in their 20s. The superintendent testified that he told Mr. Price he would be called back once business picked up again, a claim which Mr. Price denied at hearing. Mr. Price believed his layoff was permanent as the company had just hired new employees and laid off the two oldest employees, and because July was an unusual time for a layoff in the roofing industry.

Top Line’s witnesses then testified that Mr. Price was laid off due to a lack of productivity, that he was slow compared to other journeymen, and that there were issues with his attitude and work ethic. One company witness testified that he understood that Mr. Price was “getting older and was looking for some other type of work”. Another testified that “Mr. Price did not seem to want to be at work” and he “was not getting as much work done as others”. He testified further that Mr. Price would often leave work early and that payroll records would show how frequent an occurrence this was. Despite this assertion, no payroll documentation was ever entered by the company.

The owner of the company refused to testify at the hearing – even when invited to do so. This was in spite of the fact that it was the owner, in consultation with the superintendent (who did testify), who terminated Mr. Price’s employment. Further, it became clear that Top Line had not disclosed material in the proceeding that may have proven relevant to the complaint and to the company’s response. The parties were offered the opportunity to adjourn in order to locate and present documents, but the company did not wish to enter any documents at the hearing.

Mr. Price denied work performance issues, testified he was never told he was slow and maintained he did not have a poor work ethic. Other than the bare assertions of its witnesses, Top Line did not provide any proof of Mr. Price’s alleged performance issues.

Decision of the B.C. Human Rights Tribunal

The complaint of discrimination was filed under section 13 of the B.C. Human Rights Code, which prohibits discrimination in employment on the basis of age.

The burden of establishing a prima facie case of discrimination on a balance of probabilities fell on Mr. Price. The B.C. Human Rights Tribunal found there to be sufficient evidence to infer that age was a factor in the termination of Mr. Price’s employment. Top Line failed to provide any material evidence to support its contention that Mr. Price was laid off due to a shortage of work in the middle of the roofing company’s busiest season. Top Line also failed to account for the hiring of three new employees mere months before the dismissal of the two oldest journeymen on the company’s payroll. Finally, Top Line failed to provide documentation regarding its contention that Mr. Price was slow, appeared not to be happy and did not want to work. This complete lack of documentary evidence resulted in the Tribunal being unable to make findings of fact that Mr. Price was laid off for performance reasons or lack of work.

The Tribunal determined that Mr. Price had indeed established a case of employment discrimination on the basis of age. The employer was ordered to cease the contravention and refrain from behaving the same way in the future. Mr. Price specifically stated that he was only seeking two months’ of lost wages and no other remedy, including no award for injury to dignity. He was accordingly awarded eight weeks’ wages in the amount of $11,861.48. But for the fact he had expressly limited his request for damages, he would likely have been awarded significantly more.

Words of Caution for Employers

Regardless of the age of an employee, documenting performance issues long before a decision to terminate is of vital importance if that is the reason cited for termination. In addition, hiring new employees close in time to the dismissal of other employees should be carefully considered as it may be a decision that will have to be fully explained and justified.

Employers would be well advised to keep in mind the following Tribunal statement when contemplating the dismissal of an older employee:

There is no doubt that age, as in aging and the lack of capacity to perform work, can be inextricably linked. An employer cannot terminate employment based on stereotypical assumptions about age, but there may be circumstances when the reasons for termination are related to declining performance. If job performance is the issue, an employer must treat the older employee with the same respect accorded to all employees, that is, notice of the job performance problems and an opportunity to meet the workplace standard.

With an ever aging workforce and the end of mandatory retirement, this advice will be all the more important for employers to follow.