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Fighting the final act

Mandatory retirement is a thing of the past for many, but in some places it still makes sense
Employment law
A fire chief in Renfew, Ont., is currently challenging a policy that all employees in the municipal fire department retire by age 60. Google Street View

By Jeffrey R. Smith

My grandfather used to always say, “Getting old isn’t for the faint of heart.” And it’s true — as we get older, the aches and pains increase and we start slowing down. It happens at a different pace for everybody, but it does happen. Whether it’s our job or personal life, we have to make some concessions — and retiring from working life may be one of those concessions.

Often, people look forward to retirement as a chance to take it easy after many years of working — a change to pursue interests, travel, and do pretty much anything they want. It used to be that people typically hung up their working hats at age 65 — considered perhaps a time when people are less able to work effectively and have saved up enough to live on their pensions and savings. Indeed, many employers required employees to sail off into the sunset at 65.

But several years ago, this changed in Canada. After a growing movement to let workers choose when they should stop working, in 2011 the federal government repealed sections of the Canadian Human Rights Act and Canada Labour Code that permitted employers to force employees to retire once they reached a certain age, regardless of their ability to do the job. This allowed workers with federally regulated employers to work beyond age 65 — or 60 in some cases — and the provinces followed suit soon after.

Now, employers can’t force employees to retire based on their age, or else they face being accused of age discrimination — a protected ground under human rights legislation — and workers can choose to continue working well into their golden years.

However, there are certain industries that have maintained specific retirement ages, where a certain level of fitness is necessary and safety is a big concern — industries such as firefighting, policing, and the airline industry. But even these face battles from those who feel they’re still capable of performing their jobs beyond the “normal retirement age.”

The airline industry in particular has seen several challenges in the past several years to the industry standard of the age of 60 as age of retirement for pilots. This was initially supported by a clause in the Canadian Human Rights Act that permitted the termination of employment based on age, if it was the “normal age of retirement for employees working in positions similar to the position of that individual.”

This clause led to courts upholding the practice of Air Canada and other Canadian airlines having pilots retire at age 60. However, the clause was repealed in 2012 and Air Canada ended its requirement and another group of pilots are still having their claim heard by the Canadian Human Rights Tribunal.

Firefighting is another industry which is physically demanding and a result a mandatory retirement age may be legally allowed. A series of decisions by the Ontario Human Rights Tribunal in 2008, 2012, and 2013, supported a mandatory retirement age of 60 for firefighters.

If any firefighters requested accommodation to work beyond 60, they had to provide evidence of “low or negligible cardiac risk” — the employers had no obligation to implement a testing regime to determine fitness for duty: see Espey v. London (City), 2008 CarswellOnt 10895, Gill v. Hamilton Professional Fire Fighters’ Association, 2012 HRTO 1506, and Corrigan v. Mississauga (City), 2013 HRTO 1313.

However, the fight continues. A fire chief in Renfew, Ont., is currently challenging a policy that all employees in the municipal fire department retire by age 60. The 61-year-old was forced last week to retire when the town council approved the policy. Ontario legislation requires front-line firefighters to retire at 60, but the Renfrew town council voted to apply it to the fire chief as well because in a small local fire department like Renfrew’s the chief usually has to be on the scene of fires and faces a large amount of accumulated stress.

The forcibly-retired chief obviously disagreed with the decision and told the Canadian Press he was terminated based on an “arbitrarily imposed age requirement” that discriminated against older workers who could still contribute.

While mandatory retirement is largely a thing of the past, it still exists in certain areas of employment. It makes sense to a certain extent for certain jobs, as positions like firefighter and pilot require physical fitness and mental sharpness — things that can erode in older people. However, everyone is different, and setting an age for when someone can’t do something anymore is somewhat arbitrary.

Many people want to continue working for financial reasons or because they want to feel productive. But are they the best judges of whether they’re still performing at an acceptable level? If the employer decides the worker isn’t making the grade, is it age discrimination or accepting the reality of aging?

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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