A List of What Not to Do when Terminating an Older Employee

March 2014

Article by: Julie Menten

In Price v. Top Line Roofing, 2013 BCHRT 306, Top Line laid off two of its oldest journeymen, Mr. Price, who was 53 and a colleague, who was in his 60s. Top Line informed Price and his colleague that they were laid off due to a shortage of work. Three months earlier, Top Line hired a journeyman in his 40s and two young journeymen apprentices who were not laid off. While the older colleague was called back to work several months later, Price was not.

Price filed a complaint with the B.C. Human Rights Tribunal claiming that Top Line had discriminated against him on the basis of his age when it terminated his employment. Top Line defended its actions by saying that Price’s termination was not based on his age, but based on bona fide reasons. Specifically, Top Line argued that Price was terminated because of a shortage of work, the speed of Price’s work had deteriorated, his commitment was lacking, and he consistently volunteered to leave early. Top Line concluded that he was no longer happy with his job.

Both parties were self-represented at the hearing. On the list of “what not to do” as an employer, being unrepresented is at the very top. When faced with a complaint of discrimination, it is essential to obtain legal advice and secure competent representation before the Tribunal. Discrimination cases are legally and procedurally complex and good representation can help to ameliorate the consequences of a risky termination.

Second on the list of “what not to do” is keeping relevant information from the Tribunal. Top Line was represented by its co-owner, a Mr. Wilson, who declined to appear as a witness despite an invitation from the Tribunal. The Tribunal found that Wilson had an important role in the decision to terminate Price and to hire the younger journeymen. The Tribunal said that it “needed to hear” about those conversations and appears to have drawn adverse conclusions against Top Line due to its failure to provide the Tribunal with that information.

Top Line further erred by misleading the Tribunal when it argued that hiring back Price’s older colleague invalidated any inference that Price’s termination was based on his age. It turned out that his colleague, who is First Nations, was hired back for a completely different reason: to comply with a term of a contract for a project with the Songhees Nation which required Top Line to employ 10% First Nations people.

Third on the list of an employer’s “what not to do” list is failing to give notice or document an older employee’s performance concerns. Top Line may have had legitimate reasons for terminating Price but because they provided no documentary evidence and never notified Price of these concerns, the Tribunal concluded that it was reasonable to infer that Price’s termination was due in part to his age and not to performance concerns.

Top Line’s lack of documentary evidence for, and failure to notify Price of, any performance concerns, as well as its damaged credibility resulted in a decision that Price’s termination was discriminatory. Fortunately for Top Line, Price had refused any award for injury to dignity and restricted his wage loss claim to two months. In the result, Top Line was only ordered to pay Price eight weeks’ wages.

Lessons for Employers

Of assistance to employers in this case is the Tribunal’s recognition that an employer may have legitimate concerns about an older employee’s ability to perform the work. There may be circumstances when the employer’s reasons for termination are related to actual age-related declining performance. To ensure that the termination is legitimately based solely on performance and not on stereotypical assumptions about age, an employer must “treat the older employee with the same respect accorded to all employees”. This includes the following four important steps:

  1. give the employee notice that there are job performance issues;
  2. give the employee an opportunity to meet the workplace standard;
  3. consider the duty to accommodate any limitations to the point of undue hardship; and
  4. document, document, document!