There was once an expectation that workers would retire by age
65. That expectation is changing. For a variety of
reasons, many workers now want or expect to work later in
life. As it can no longer be assumed that employees will
retire at a certain age, employers will encounter issues about
dismissing older and long-serving employees. In recent years,
we have seen a number of claims relating to dismissal of older and
long-serving employees. To pick a few examples:
An employee with 37 years of service claimed for constructive
dismissal. The employee had worked for the same employer
since he was 16 – his entire working life. He never
completed high school, having quit school to take up full-time
employment with the company. He was in his early 50s when the
constructive dismissal claim arose: Russo v Kerr Bros.
Ltd., 2010 ONSC 6053.
A 65 year old employee claimed for wrongful dismissal after he
lost his job due to restructuring. The employee had worked
for the same employer since immigrating to Canada 36 years before,
and had no other Canadian work experience: Hussain v Suzuki
Canada Ltd. (4 November 2011), CV-11-421472 (Ont SCJ).
An employee, who was 67 at the time of termination, alleged
discrimination based on age when the employer eliminated her
position and decided not to hire her for a similar position at a
lower level: Cowling v Alberta (Employment and
Immigration), 2012 AHRC 12.
Two workers who were in their early 80s at the time of
termination received substantial damages for wrongful dismissal:
Filiatrault v Tri-County Welding Supplies Ltd., 2013 ONSC
When an employee is dismissed without cause, the amount of
working notice or pay in lieu of notice that should be provided
depends on a number of factors. The factors set out in the
leading case, Bardal v Globe & Mail Ltd., are: the
character of employment, length of service, age of employee, and
availability of comparable employment in light of the
employee's experience, training and qualifications. No
one factor outweighs another, and they must be applied on a
For many older workers, the Bardal factors add up to a
lengthy notice period. Not only does the reasonable notice
period tend to increase with the age of the employee, but older
employees may also be long-serving employees. An older
employee who has spent all or most of her working life with one
employer may have upwards of 30 or even 40 years of service.
At the same time, an older worker may have difficulty mitigating
damages as age may be a barrier to finding comparable employment
It has been rare for Canadian courts to award more than 24
months' compensation as damages for wrongful dismissal.
Nonetheless, there is no cap on awards for wrongful
dismissal. Courts have repeatedly affirmed that there
is no maximum period of reasonable notice. There have been a
handful of decisions awarding a dismissed employee more than 24
months of compensation. In Hussain, for example, the
court determined the reasonable notice period was 26
In addition, discrimination based on age is prohibited by the
Alberta Human Rights Act and human rights legislation in
other jurisdictions. If age is a factor in the decision to
dismiss, an employer also faces potential liability for
discrimination. Human rights tribunals have not limited
damages in the same way as courts, and may award any amount
necessary to put a complainant back in the position she would have
been if not for the discrimination. Human rights tribunals
also have the power to reinstate an employee. Damages for a
successful human rights complaint may be greater than damages for
wrongful dismissal, and can be significantly more than 24
months' compensation. In Cowling, for example,
the complainant was reinstated by the Alberta Human Rights
Commission and awarded damages for loss of pay and benefits in the
five years between termination and the date of the hearing.
Before dismissing an older or long-serving employee, it is wise
to seek legal advice. Field Law can help employers determine
appropriate severance offers and offer advice to minimize legal
risks when dismissing an employee.
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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