If you are going to lay off older workers while hiring younger
ones in the same category, you better have a good
explanation. That's essentially what the BC Human Rights
Tribunal said in Price and Top Line Roofing Ltd., 2013
BCHRT 306. The Complainant, Paul Price, was a journeyman
working for the Respondent Top Line. He was one of the two
oldest journeymen employed at Top Line. Both were laid off in
July, 2012. A few months before this, however, Top Line had
hired a journeyman in his 40s and two young journeymen
Top Line said Price was laid off because of a shortage of work,
lack of speed, and poor motivation and attitude. Price denied
performance and motivation issues, and said they had never been
raised with him.
Neither party was represented, and the Tribunal noted that Top
Line failed to disclose relevant documentation that would have
supported its allegations, such as time sheets showing his hours at
work compared to those of other employees. The Tribunal also drew
an adverse inference because a Top Line representative present at
the hearing, who was said to have had input on Price's
termination, did not testify.
The Tribunal concluded that, since 3 younger journeymen
employees were hired a few months before the two most senior were
terminated, it could infer that age was a factor in the termination
of Price's employment. She found that "the circumstances
require an explanation" and that the evidence led by Top Line
was not sufficient for her to conclude that performance issues were
the cause of Price's layoff.
More generally, the Tribunal member noted that aging and the
lack of capacity to perform certain work can be inextricably
linked, and if job performance is the issue, an employer must treat
the older employee with the same respect accorded to all employees,
by giving notice of the job performance problems and an opportunity
to meet the workplace standard.
This case is a reminder that employers must have a compelling
rationale for the termination of employees when age may be
perceived as a factor. A consistent and rigorous performance
management program for all employees will help protect employers
where performance problems arise with older employees, especially
where fair and documented processes are followed.
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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