'Keeping a paper trail of what you said at a particular meeting and having a witness - those are good practices'
“You definitely need to have careful communication and documentation of those communications. Even if you're not going to document each and every conversation completely, keeping a paper trail of what you said at a particular meeting and having a witness - those are good practices.”
So says Twila Reid, an employment lawyer at Stewart McKelvey in St. John’s, after the Newfoundland and Labrador Human Rights Board of Inquiry found that a worker’s dismissal was for reasons other than his age, despite discriminatory comments made to him.
The worker was employed in an information technology (IT) role in the Newfoundland and Labrador public healthcare system beginning in 1985. In 2012, he became the regional manager, problem management, with the Healthcare Technology and Data Management Department (HTDM) for the Eastern Regional Health Authority (ERHA) in St. John’s.
The worker’s appointment to the role came at a time of restructuring and when a new chief technology officer (CTO) took over. He oversaw about 20 support workers and was 54 years old at the time, while the average age in the department was about 20 years younger.
Employer raised performance issues
In August 2013, the worker was called to a meeting in which issues were raised with respect to how he was prioritizing work. The worker disagreed with some of the issues.
According to the CTO, he had received several complaints from staff about the worker, saying that he wasn’t attending meetings, approving overtime, or answering emails. There were also issues raised with delays, poor communication, and the capital budget. The CTO also felt that the worker was not “self-aware enough to acknowledge issues” and acted like he was a scapegoat.
After a data glitch occurred while the worker was on vacation, the worker was put on a secondment that he felt was a demotion and punishment. He thought it was a junior position and realized that the secondment was timed to last until he would be eligible for retirement.
In January 2014, a snowstorm caused a major power outage in St. John’s. The worker dealt with a service interruption at a long-term care home the next day, after he dug out of the snow. ERHA inquired about how long it took for the worker to respond, as he had been unavailable for about 46 minutes while he was on call. The CTO suspended the worker for five days, which the worker felt was unwarranted.
According to the worker, when the CTO informed him of the suspension, he said, “So you’re 54. You’ve got two years to go. You better think about things while you’re off.” The worker thought this meant that he had limited time and someone would decide for him when he would retire.
An employer’s inquiries into a worker’s plans for retirement did not constitute age discrimination, the Alberta Human Rights Tribunal ruled.
Project behind schedule
The worker was called into another discipline meeting on March 12. He was having a difficult time with a project because of limited resources – it was a year late getting started - but he convinced the CTO that the project was on track. A couple of weeks later, the worker was given additional people for the project.
The project made some progress over the next month. However, the CTO had lost confidence in the worker because the project could not be completed on schedule. The CTO consulted with HR representatives and legal counsel to discuss his options. They believed that they had cause for termination without notice, but they decided to terminate without cause to give him “the best possible landing.”
On May 7, the worker was summoned to a meeting and the CTO gave him a letter stating that he was being terminated without cause. The CTO commented that they would be “paying him up until retirement.”
The CTO said that he made the “retirement” comment because they were paying the worker salary continuance up until he was eligible to retire.
The worker was brought back to his office to get his personal belongings by an HR representative. When he asked if he could still go to the gym, she asked if he saw any retirees at the gym.
A reduction in disability benefits and life insurance at age 65 was permitted by exceptions in provincial legislation, the Ontario Human Rights Tribunal ruled.
Announced that worker had retired
The next day, the director sent an email to one of the worker’s colleagues to say that he had retired. The worker felt this was “untrue and callous” and infringed his privacy, particularly after a former co-worker contacted him to say he was shocked and asked if he was “enjoying his retirement.”
According to the CTO, he chose to say the worker was retired rather than simply saying that he no longer worked there, out of respect for the worker.
The worker filed a human rights complaint alleging that ERHA discriminated against him on the basis of age through the comments about his age and retirement, and in his dismissal.
The board noted that the CTO consulted several HR professionals and legal counsel to determine the proper course of action. EHRA also “went to great lengths to protect [the worker] from being disadvantaged in respect of financial losses” by dismissing him without cause and continuing his pay until he became eligible for a pension, the board said.
The board found that the CTO may have targeted the worker in some respects, but there was no evidence that it was related to the worker’s age. The evidence showed a “tenuous working relationship” and performance concerns – including a five-day suspension and another disciplinary meeting – but no indication that age was a factor, said the board, noting that the “appropriate policies and procedures were followed” in terminating the worker’s employment.
The elimination of mandatory retirement has seen older workers staying longer, according to a lawyer.
Documented performance concerns
The fact that ERHA could point to specific, documented performance issues supported its position that age wasn’t a factor in the worker’s dismissal, says Reid.
“While the termination wasn't made for cause, the employer could demonstrate a pattern of substandard performance of this employee,” she says. “They could show that the reason wasn't age, but poor performance in the specific project this employee was responsible for implementing.”
“There were documented communications to this employee about the project, expectations, and that the employee's performance wasn't meeting standards,” adds Reid. “The employee didn't necessarily accept that his performance was substandard, but there had been pretty clear and unambiguous communications about that over a period of time.”
As for the age-related comments to the worker, the board found a mixed bag. The HR representative’s comment about the worker seeing retirees at the gym was an innocuous one about anyone who was no longer with EHRA and there was no intention to insult the worker, said the board.
The board also found that the CTO’s email saying that the worker had retired was intended to avoid speculation and was out of respect. Although the CTO could have chosen his words better, it wasn’t discriminatory on its own, the board said.
The New Brunswick government issued a new guide against age discrimination.
Potentially discriminatory language
Even though the intention was good and the retirement message wasn’t found to be discriminatory, Reid warns against using such wording.
“You should not communicate something as a retirement without the employee's consent - particularly in circumstances which, arguably, wasn't a retirement,” says Reid. “There was no onus on the employer to call it a retirement - obviously, they had to say the person is no longer with the organization but I wouldn't call something a retirement unless the person actually applied for retirement or agrees that it’s going to be communicated that way.”
However, the board found differently regarding the CTO’s comment during the disciplinary meeting in which he referred to the worker’s age and that he had “two years to go.” It was a threatening statement related to the worker’s age and retirement, said the board.
The board also found that the CTO’s multiple comments related to the worker’s age ought not to have been said, which met the definition of harassment – a course of vexatious comment or conduct that is known or ought reasonably to have known to be unwelcome.
The board determined that the worker was subjected to age-based harassment from the CTO’s comments, but the worker’s termination of employment was not discriminatory. The worker was not entitled to reinstatement or compensation for lost wages, but he was entitled to damages for injury to his dignity, feelings, and self-respect, to be decided in a future hearing.
