Is age relevant in dismissals?
Under Canadian common law, an employer is able to dismiss a non-unionized employee in only one of two ways.
One is with just cause. This is generally difficult for an employer to establish.
The second is without just cause, as long as the employee is given reasonable notice of the dismissal.
The concept behind the reasonable notice period is that employees ought to be given advance notice of their job ending, to allow them to find new employment before the current position ends.
It is a wrongful dismissal to dismiss a non-unionized employee without just cause and without providing the requisite notice.
Sometimes, though, an employer would rather not have someone hanging around, working through the reasonable notice period, who knows he or she is on the way out.
So, instead of providing advance notice of the impending dismissal, the law allows an employer to provide the employee with a payment instead of notice. This is commonly referred to as a severance payment.
The idea underlying the payment is to place the employee in the position he or she would have been in if the employer had allowed the employee to work through the reasonable notice period. This includes wages, vacation pay, and other remuneration or benefits the employee would have received had she or he continued to work through the notice period.
The amount of severance pay in turn depends on the length of the reasonable notice period.
The length of the notice period in each case is assessed based on the facts of each individual case.
Essentially, the court will attempt to determine the period of time over which it is reasonable to anticipate that the employee is likely to land a new job.
Certain types of factors weigh in favour of a shorter or longer notice period.
Age, for example, is a factor that is often considered. Advanced age is a factor that can sometimes lead to a longer notice period.
Because human rights legislation prohibits age discrimination, some have theorized that age may in the future decline as a factor in determining the notice period.
Others say that greater challenges in landing work after age 50 is not necessarily an overall issue of age discrimination, though that may be a factor in individual cases.
Younger employees often do tend to find it easier to land a replacement job. As was said by one British Columbia judge:
The inference drawn in many cases, including judgments of the Supreme Court of Canada, that persons in their late 50s and 60s may expect to have greater difficulty finding alternate employment, is often a matter of common sense. Such persons have fewer years of service to offer prospective employers.
Even with the existence of human rights legislation, it is probably safe to say that this reality for older workers is not likely to change any time soon.
There are recent cases in other provinces in which increasing amounts are being awarded to older employees. At least one of these cases is currently awaiting an appeal decision.
The bottom line is that if you are an employer, tread carefully when attempting to dismiss an older employee.
If you are an employee of a somewhat mature age, and you are wondering if you have been provided with adequate notice or pay in lieu of that notice, consider promptly seeking legal advice.
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