Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people���s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. photo:contributed

Kootnekoff: What’s age got to do with it?

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.

The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances. If you would like to reach us, we may be reached at 250-764-7710 or info@inspirelaw.ca. Check out our website, www.inspirelaw.ca.

To report a typo, email:
newstips@kelownacapnews.com
.


@KelownaCapNews
newstips@kelownacapnews.com

Like us on Facebook and follow us on Twitter.

Just Posted

Kelowna receives accolades for accessibility and inclusivity

“Receiving this provincial recognition reaffirms that everyone is welcome in Kelowna,” said Mayor

Kelowna council opposes ‘racist’ Quebec secularism bill

The city joins Calgary, Montreal, Victoria, Kitchener and Brampton in condemning the bill

Grizzli Winery throws Halloween family bash

Safe and fun for children attend Grizzli Winery this Halloween

Gotham Nightclub pumps up the jams for the first time this weekend

Gotham Nightclub is taking place of Level Nightclub eight months after it closed its doors

New trial ordered for Salmon Arm optician convicted of sexually assaulting 14-year-old boy

Kenneth Pilkington was ininitally found guilty of the offense

Tories take North Okanagan-Shuswap riding with decisive lead

Incumbent Conservative MP Mel Arnold returns to Ottawa, Liberal Cindy Derkaz a distant second

Second young woman dies after rollover crash near Williams Lake

‘Someone’s going to get her heart, which is awesome, because she has the best heart in the world’

Google searches for ‘how to vote’ surge on Election Day

Interest spikes despite social media campaign by Elections Canada

Troll Grandfather bridges gap in Okanagan

Spotlight Kids’ Series show comes to Vernon Sunday

Alberta man pleads guilty, fined for hunting without a licence in North Island

It’s the responsibility of each hunter or angler to know whether they are considered a B.C. Resident.

B.C. mayor apologizes for removal of Queen’s portrait from council chambers

‘I prefer to be inclusive of the many aspects of our history’

Hergott: Driving and talking to a passenger

Lawyer Paul Hergott writes about distracted driving with passengers

Alcohol a possible factor in crash that killed 17-year-old girl near Williams Lake

A pickup truck left the road and rolled over on Highway 20 on the weekend

Most Read