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Golden years of the employment relationship

Aging workforce brings new dynamic to the employment relationship – but some things don’t change that much

By Jeffrey R. Smith

With the elimination of mandatory retirement across Canada, combined with the gradual aging of the population, employers can’t ignore older workers, whether it’s through managing their workforce or recruiting for vacant positions.

Not only are there more older people as a result of baby boomers reaching senior citizen status, but more of them are putting off retirement because they either want to continue to stay busy and feel productive or they can’t afford to sail off into their golden years just yet.

The result? According to Statistics Canada, the percentage of Canadian workers who are 55 and over has steadily increased over the past decade, and in 2010 was about 16 per cent of the total workforce in Canada.

An older workforce can bring several issues for workers, such as how to deal with potentially declining productivity, different priorities for benefits and how to keep good employees engaged. One potentially big concern would be if an older worker isn’t meeting expectations. How much does the employer need to accommodate the worker to avoid an accusation of age discrimination? What are the employer’s obligations if it decides to terminate that worker’s employment?

Termination of an older worker’s employment can be tricky. If the worker has been an employee for a long time, there’s the possibility of a lengthy notice period and severance package. The traditional factors — determined in the 1960 Ontario High Court decision in Bardal v. Globe & Mail Ltd.— considered when determining reasonable notice (character of employment, length of service, age, availability of similar employment with regard to experience, training and qualifications) could be particularly demanding for an older employee, as the employee is more likely to have had a longer term of service and a more important position in the company. It’s also going to be more difficult for an older employee to find comparable work.

But as the number of older employees increases, will it become more common for older people to be applying for jobs, and therefore make it easier for older workers to find jobs if they’re fired? Will this make the expectation of their obligation to mitigate their damages similar to younger workers?

Three years ago, a Quebec employer closed its plant and terminated the employment of several workers, including a 75-year-old with 38 years’ service. The company offered the worker a similar job in a nearby city, but the worker refused and sued for wrongful dismissal.

The Quebec Superior Court found the worker would have been entitled to a fairly lengthy reasonable notice period, but didn’t award damages in lieu because the company’s job offer was reasonable. Though the worker was at an advanced age, he didn’t plan to retire and was obligated to mitigate his damages, said the court. Because he refused the job offer and didn’t look for other work — at the time, the worker felt he wouldn’t find anything, but didn’t bother looking — the worker wasn’t entitled to any damages.

Employers may be facing more obligations to protect older workers, but workers staying in the workforce for a longer time can also face their own obligations in the employment relationship.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at or visit for more information.

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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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