Age of retirement is never guaranteed , and an employer that makes assumptions risks age discrimination
By Jeffrey R. Smith
Ever since the banishment of mandatory retirement in Canada, employers have had to be careful about how they handle older workers. Age is a protected ground under human rights legislation, so employers can’t discriminate based on age. And with no mandatory retirement and the greying of the baby boomer generation, there are more older workers in the workplace. This shouldn’t be too much of a problem during the day-to-day operation of a business — unless there are some performance issues related to age, which could create a tricky situation — but when it comes to retirement and succession planning, it’s not so easy.
Employers often like to have an idea of when an older employee might be thinking of retiring, but there’s no way of knowing for sure when there’s no set retirement age. And it’s not easy to try to find out. Whether an employee is thinking of retiring in the near future or not, if an employer starts inquiring or dropping hints, it can be seen as pressuring the employee. Also, if an employer thinks an employee might be close to retirement, it might be reluctant to offer a promotion or a specific project if it thinks it might have to go through the trouble of finding someone else when the employee retires. However, this kind of thinking creates an adverse effect on the employee related to her age — and that just isn’t legal.
A few years ago, the federal government introduced a deficit reduction plan that involved job cuts to its departments. As part of the program, it provided employees close to retirement with an opportunity to receive a cash incentive for stepping down and allowing another federal employee who had been downsized to take their position. One 62-year-old employee with the Canada Border Services Agency (CBSA) who hadn’t been planning on retiring anytime soon decided to take advantage of the deal.
However, when the employee asked her manager permission to advertise the availability of her position, the manager said no. The manager expected the employee to retire soon — though the employee had given no indication of her intentions — and wanted to cut her position after she retired. As a result, she didn’t want a new employee in the position.
After a grievance, CBSA determined the employee could advertise her position to downsized employees so she could receive the retiring incentive. However, the manager refused to review the applicants for the position, as she still wanted to eliminate the position.
The Public Sector Labour Relations and Employment Board found the main reason for the manager’s refusal to allow the employee to post her position and take advantage of the incentive was because she assumed the employee was going to retire soon. Since the employee actually had no intention of retiring soon and hadn’t made any indication that was the case, the manager was making assumptions based on the employee’s age. As a result, the employee wasn’t being permitted to participate in the program because of her age — suffering adverse effects in her employment because of her age.
CSA had to pay $15,000 for age discrimination and another $10,000 in special compensation for the manager’s “wilful and reckless” refusal to stop the age discrimination: See Legros c. Conseil du Trésor (Agence des services frontaliers du Canada), 2017 CarswellNat 5897 (Fed. Public Sector Lab. Rel. & Emp. Bd.).
Sometimes it can be a pain for employers to manage around an older employee who may or may not be close to retirement, but as the above case shows — don’t assume too much. An employee who is 62 might be ready to retire, or she might be planning on working another 10 years. Assuming anything and basing decisions on it could lead to an allegation of discrimination.
