As we reported
previously, the Federal government is about to join most of the
provinces in making mandatory retirement, for the most part,
unlawful. That deadline is fast approaching - December 15,
2012. What can employers do until December 15,
2012? According to the Canadian Human Rights Commission, very
The Human Rights Commission News Release
Earlier this year, the Canadian Human Rights Commission issued a
news release cautioning employers against using the time leading up
to December 15, 2012 to force employees to retire before they are
ready to. In the news release, Acting Chief Commissioner David
Langtry said that "[t]he transition period should not be
viewed as a license to force aging workers out the door. Forcing
someone to retire because of their age clearly contradicts
Parliament's intent, even if a defence in the law still appears
to be available."
Take Away for Employers
The Canadian Human Rights Commission is clearly suggesting that
federally regulated employers should not use these last few months
leading up to December 15, 2012 as a "race to the finish
line" where current employees are potentially still subject to
mandatory retirement. Instead, it may be more prudent for federally
regulated employers to govern themselves in the regime that will
exist following December 15, 2012 where they:
may still offer voluntary retirement programs; and
may be able to justify mandatory retirement where they are able
to show a bona fide work requirement or
As we have said before, once December 15, 2012 comes and goes,
federally regulated employers will not be able to simply "wait
out" the performance issues of their older
employees. Instead, we recommend that employers start
implementing effective performance management programs for all
their employees, including older employees.
It remains to be seen if employers will be subject to a greater
number of age discrimination complaints because of the elimination
of mandatory retirement throughout most of Canada. Being able to
demonstrate that a termination or other employment-related action
was based on something other than age will only become increasingly
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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