Company had a proactive succession plan
An Alberta company’s retirement discussions and eventual firing of a worker having performance issues was not age discrimination, the Alberta Human Rights Tribunal has ruled.
William Davidson, 65, was a sales representative for Advance Tank Centres (ATC), a tank trailer parts and repair company based in Regina. He was initially hired by a predecessor company in 1994 and was transferred to ATC in a corporate restructuring in 2015. He job involved negotiating the sale of products in southern Alberta and southeastern B.C., based out of ATC’s Calgary branch.
Following the restructuring, ATC instituted new rules and expectations for the sales process. The sales director felt that Davidson was having trouble meeting these expectations and gave him performance reviews with mixed ratings, some unacceptable and some superior. Occasionally, he received the lowest assessment score.
The sales director raised Davidson’s performance issues in emails in December 2016 and October 2017, for issues such as expense reports with false information and abuse of the vacation policy.
On Oct. 27, 2017, the company’s director of sales and marketing asked Davidson when he would be retiring as ATC liked to be proactive with succession planning. Davidson replied that he didn’t know, but he would provide sufficient notice when he decided. According to Davidson, he hadn’t indicated that he was considering retirement, but the sales director emailed him about it two weeks later and confirmed that he wanted Davidson to retire within the next 18 months. The sales director believed that Davidson had indicated at the meeting that he intended to retire in 18 months and had said that he didn’t feel comfortable following the new rules and expectations.
In June 2018, ATC’s director of HR emailed Davidson to inform him that his retirement date was set for April 30, 2019, and his replacement would take over at that time. Davidson reiterated that his had no plans to retire. He met with his director in August and was told that management wanted to encourage him to retire due to his difficulties with the new rules and its need to plan ahead with succession. According to the sales director, Davidson asked about various retirement packages and suggested possibly becoming an independent contractor.
A short time later, ATC presented Davidson with some options, with one being retirement and another termination of employment. Davidson took these under advisement and forwarded them to his personal email address.
The sales director continued to work with Davidson on his noncompliance with the rules and expectations, but things didn’t go well. By Oct. 4, ATC determined that Davidson would not improve and it terminated his employment without cause.
Davidson made a human rights complaint, alleging that ATC discriminated against him based on the ground of age by trying to force him into retirement and firing him when he said he didn’t plan to retire. He also alleged that ATC fabricated performance issues to force him out.
An Alberta human rights officer investigated the complaint and found that Davidson believed that he was terminated because of his age, but his belief wasn’t held up by the evidence. Davidson had performance issues and had been told he needed to improve or look at retiring. ATC terminated him when there was so sign of improvement, said the officer in dismissing the complaint.
Davidson appealed to the tribunal, which found that the evidence indicated there were performance issues since the new rules and expectations were implemented in 2015. ATC made these issues clear through performance reviews and emails, but things didn’t improve.
The tribunal also found that ATC didn’t harass Davidson by trying to force him to retire, as raising the issue was “a legitimate matter of succession planning” and was an ongoing discussion about the timing and options for retirement. The evidence indicated that Davidson himself asked about retirement packages and introduced the idea of him moving to an independent contractor role. In addition, Davidson didn’t object to the retirement options.
The tribunal upheld the human rights officer’s decision to dismiss the complaint, finding that while ATC was motivated to discuss Davidson’s retirement, Davidson didn’t object to it and participated in the discussions. See Davidson v. Advance Tank Centres Ltd., 2021 AHRC 194.
