being forced out, or are being unfairly targeted. Consequently, em-ployers
should be careful about singling out employees to discuss
retirement based on age; make conversations surrounding retire-ment
and future goals and plans a consistent practice; and think
about offering referrals to financial planners for those interested.
When terminating an older employee, employers must be wea-ry
of intersections of the two protected human rights grounds of
“age” and “disability.” Despite possible legitimate concerns under-scoring
the decision to terminate (such as performance issues), an
employer must be sensitive to the possibility that disability might
be a factor. If so, would terminating the employee demonstrate
the employer’s failure to accommodate? In cases such as this, em-ployers
should consider whether accommodation options might
be suitable, or they might want to offer early retirement packag-es
as incentives (as mentioned above). Although singling out an
employee and offering an early retirement incentive is normally
unacceptable, in the case of termination, retirement incentives can
be offered in lieu of a non-discriminatory reason for termination
(i.e., performance issues).
If an employer remains steadfast in their decision to termi-nate
(assuming it is without cause), attention must be paid to the
employee’s termination entitlements for which they may be lia-ble
– one being notice period. The purpose of the notice period is
to give the employee sufficient time to find comparable employ-ment.
Age is one of the factors used to determine an employee’s
reasonable notice period, and the older a worker, the greater a no-tice
period may be. As one might imagine, finding employment at
an older age can be challenging, and notice periods generally re-flect
this (especially where the employee has longstanding tenure).
Finally, but no less important, is the consideration of an employ-ee’s
family status. When we hear “the greying workforce,” we tend
to fixate on individuals nearing the age of retirement; however,
employers also ought to be aware of their younger employees’ obli-gations
as they relate to eldercare.
“Family status” is a protected ground under the Human Rights
Code, and case law has affirmed that providing eldercare for ailing
parents falls under this protected ground. As employees begin to
work double time, fulfilling their duties at work and caring for par-ents
at home, there will inevitably be an increase in family status
claims. To avoid a potential claim under this ground, employers
should try to accommodate and be flexible with their caregiving
employees. Strategies may include offering flexibility in the work-week
and hours, and the possibility of working remotely.
Employees who choose to work up to and past the average re-tirement
age can pose a certain set of challenges for themselves
and their employers – these challenges, however, are not insur-mountable.
Employers who equip themselves with the appropriate
knowledge and strategies, and collaborate with employees to es-tablish
feasible options, can avoid unhappy workers and associated
legal claims. n
Adrian Ishak is a partner at Rubin Thomlinson LLP.
Phovoir / Shutterstock.com
HRPROFESSIONALNOW.CA ❚ SEPTEMBER 2017 ❚ 19