HR Errors: how not to fire an older worker

Discrimination against older workers is coming up more and more in court. Is your HR team

HR Errors: how not to fire an older worker

In July 2012 Top Line Roofing laid off two of its oldest journeymen, Paul Price, 53 and a colleague who was in his 60s, claiming there was a shortage of work. Three months earlier the company had hired a journeyman in his 40s and two young journeymen apprentices who were not laid off. While the older colleague was called back to work several months later, Price was not.

Price filed a complaint with the B.C. Human Rights Tribunal claiming that Top Line had discriminated against him on the basis of his age when it terminated his employment. Top Line defended its actions by saying that Price's termination was not based on his age, but based on bona fide reasons. Specifically, Top Line argued that Price was terminated because of a shortage of work, the speed of Price's work had deteriorated, his commitment was lacking, and he consistently volunteered to leave early. Top Line concluded that he was no longer happy with his job.

The employer's first major mistake was representing themselves, Roper Greyell lawyer Julie Menten says.

"When faced with a complaint of discrimination, it is essential to obtain legal advice and secure competent representation before the Tribunal," she says. An employer who does not have legal representation are doing themselves a disservice, and are unlikely to get a positive result.

Top Line alse attempted to withold relevant information from the Tribunal and mislead the tribunal, first when co-owner John Wilson refused to appear as a witness. The Tribunal found that Wilson had an important role in the decision to terminate Price and to hire the younger journeymen and said that it "needed to hear" about those conversations. It "appears to have drawn adverse conclusions against Top Line due to its failure to provide the Tribunal with that information," Menten says.

The company also attempted to argued that hiring back Price's older colleague showed there was no age discrimination. However, evidence showed the colleague, who is First Nations, was hired back to comply with a term of a contract for a project with the Songhees Nation which required Top Line to employ 10% First Nations people.

Finally, Top Line made one of the most common mistakes: failure to document.

"Top Line may have had legitimate reasons for terminating Price but because they provided no documentary evidence and never notified Price of these concerns, the Tribunal concluded that it was reasonable to infer that Price's termination was due in part to his age and not to performance concerns," Menten says.

The Tribunal found that Price's termination was discriminatory. According to Menten, Top Line was fortunate that Price had refused any award for injury to dignity and restricted his wage loss claim to two months. In the result, Top Line was only ordered to pay Price eight weeks' wages.

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