Worker had no evidence; employer had reasonable evidence of performance issues
A worker’s age discrimination complaint related to her firing has been dismissed as being based only on speculation and no merit.
The 65-year-old worker became an employee of Caregivers Home Health Care, a provider of health-care services to people in their homes in Edmonton, in May 2017. She began in the role of health care aide and home support worker, later becoming a receptionist.
Caregivers terminated the worker’s employment without cause on Oct. 28, 2019. She subsequently filed a human rights complaint alleging that her dismissal was due to age discrimination, contrary to the Alberta Human Rights Act.
The worker acknowledged that Caregivers told her that the reason for her termination was “with all the complaints” about her, although a reason for termination was not formally given.
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Dismissal for poor performance: employer
Caregivers countered that the dismissal was for poor performance, pointing to the worker’s admission about what she was told at her termination. The company also provided statements from four individuals who worked with the worker that indicated there were issues of poor performance and pointed out that it employed several older workers and there was no “dislike” for the older demographic.
The Director of the Alberta Human Rights Commission dismissed the worker’s complaint on the basis that it was without merit, finding that the accounts by other Caregivers employees was evidence that there were performance issues and the worker had been made aware of them. In addition, the worker was unable to provide any hard evidence that supported her claim that age was a factor in her dismissal, in light of the company’s evidence of its reason for termination.
The worker requested a review of the director’s decision, claiming that she had not been made aware of performance deficiencies and the four employees who provided statements were friends of Caregiver’s operations manager who all made age-related comments to her.
The Alberta Human Rights Tribunal noted that a discrimination complaint that is looking to have a decision-maker draw an inference of discriminatory actions must allege facts that can be demonstrated through evidence that can show a link between adverse treatment and a ground of disability. This must be “more than an assertion or even a sincere belief,” said the tribunal.
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‘Assumptions or speculations’
The tribunal found that the worker’s allegations were all “based on assumptions or speculations.” As the dismissal was without cause, Caregivers did not provide an official reason for termination, so the worker did not know the reasons for her firing and whether age was a factor, the tribunal said.
The tribunal noted that it wasn’t enough for the company to simply deny that age was a factor in the worker’s termination, but it provided written statement from four employees who had issues with the worker’s performance that supported its position that the termination was for poor performance. This was more than what the worker provided, as she only put forward speculation without evidence, the tribunal said.
“I do not see that justice would be served to send this matter to a hearing when the [worker] would have no basis, other than speculation, for contradicting [Caregiver’s] evidence that age was not a factor in the decision to terminate her employment,” said the tribunal in upholding the Director’s decision dismissing the complaint as having no merit or reasonable prospect of success.
See Brown v. Caregivers Home Health Care Inc., 2023 AHRC 59.
