Succession and transitional planning is an important and
necessary process in any organization, especially where a
significant number of employees are nearing retirement.
However, employers must be aware of the risks associated with their
succession and transition plans, particularly where employees at or
near retirement wish to continue working. Cowling v. Alberta Employment and
Immigration, a recent decision of the Human Rights
Tribunal of Alberta (the Tribunal), serves as a good reminder of
In Cowling, the complainant, a 67 year old labour relations
officer (LRO) that had been employed by the Department of Human
Services for 8 consecutive years on a series of contracts alleged
that she was denied continuing employment and discriminated against
due to her age. She had been notified approximately 1 year
prior to the expiry of her latest contract that it would not be
renewed. The reason given by the employer was that it planned
to restructure the position she held, downgrading it a level from
LRO 3 to LRO 2.
When the competition for the LRO 2 position opened, the
complainant applied and was interviewed, but she was not
successful, and neither were the other 110 applicants.
Shortly after the unsuccessful LRO 2 competition, and after
her contract expired, the employer redefined the LRO 3 position
again, this time as labour relations advisor, a management position
that was materially the same as the position that she had held for
8 years. In the staffing request for the LRO 3 position, the
complainant's name was even included as the previous incumbent.
The complainant was aware of and could have applied for the
job, but, due to confusion regarding the closing date, she did
After reviewing the evidence, the Tribunal held, among other
things, that it was reasonable to infer that age was a factor in
the denial of her continued employment, given the circumstances
surrounding the employer's restructuring and the non-renewal of
her contract after 8 years of exemplary service. The Tribunal
further held that, while succession and transitional planning is
generally a legitimate and necessary process in any organization,
it did not, in these circumstances, provide a credible explanation
for the denial of her continued employment.
After concluding that the evidence strongly supported a finding
of age discrimination, the Tribunal ordered that she be reinstated,
and that she be paid 5 years' of lost wages at a discounted
rate, together with general damages of $15,000, interest and
This case illustrates how serious the consequences can be for
employers that do not properly manage their succession and
transition plans, particularly where employees at or near
retirement wish to continue working. In order to avoid
claims, employers must ensure that their plans and policies respect
the rights of such employees, as well as their obligations pursuant
to human rights legislation.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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