Price v. Top Line Roofing, 2013 BCHRT 306, Top Line laid off
two of its oldest journeymen, Mr. Price, who was 53 and a
colleague, who was in his 60s. Top Line informed Price and his
colleague that they were laid off due to a shortage of work. Three
months earlier, Top Line hired a journeyman in his 40s and two
young journeymen apprentices who were not laid off. While the older
colleague was called back to work several months later, Price was
Price filed a complaint with the B.C. Human Rights Tribunal
claiming that Top Line had discriminated against him on the basis
of his age when it terminated his employment. Top Line defended its
actions by saying that Price's termination was not based on his
age, but based on bona fide reasons. Specifically, Top
Line argued that Price was terminated because of a shortage of
work, the speed of Price's work had deteriorated, his
commitment was lacking, and he consistently volunteered to leave
early. Top Line concluded that he was no longer happy with his
Both parties were self-represented at the hearing. On the list
of "what not to do" as an employer, being unrepresented
is at the very top. When faced with a complaint of discrimination,
it is essential to obtain legal advice and secure competent
representation before the Tribunal. Discrimination cases are
legally and procedurally complex and good representation can help
to ameliorate the consequences of a risky termination.
Second on the list of "what not to do" is keeping
relevant information from the Tribunal. Top Line was represented by
its co-owner, a Mr. Wilson, who declined to appear as a witness
despite an invitation from the Tribunal. The Tribunal found that
Wilson had an important role in the decision to terminate Price and
to hire the younger journeymen. The Tribunal said that it
"needed to hear" about those conversations and appears to
have drawn adverse conclusions against Top Line due to its failure
to provide the Tribunal with that information.
Top Line further erred by misleading the Tribunal when it argued
that hiring back Price's older colleague invalidated any
inference that Price's termination was based on his age. It
turned out that his colleague, who is First Nations, was hired back
for a completely different reason: to comply with a term of a
contract for a project with the Songhees Nation which required Top
Line to employ 10% First Nations people.
Third on the list of an employer's "what not to
do" list is failing to give notice or document an older
employee's performance concerns. Top Line may have had
legitimate reasons for terminating Price but because they provided
no documentary evidence and never notified Price of these concerns,
the Tribunal concluded that it was reasonable to infer that
Price's termination was due in part to his age and not to
Top Line's lack of documentary evidence for, and failure to
notify Price of, any performance concerns, as well as its damaged
credibility resulted in a decision that Price's termination was
discriminatory. Fortunately for Top Line, Price had refused any
award for injury to dignity and restricted his wage loss claim to
two months. In the result, Top Line was only ordered to pay Price
eight weeks' wages.
Lessons for Employers
Of assistance to employers in this case is the Tribunal's
recognition that an employer may have legitimate concerns about an
older employee's ability to perform the work. There may be
circumstances when the employer's reasons for termination are
related to actual age-related declining performance. To ensure that
the termination is legitimately based solely on performance and not
on stereotypical assumptions about age, an employer must
"treat the older employee with the same respect accorded to
all employees". This includes the following four important
give the employee notice that there are job performance
give the employee an opportunity to meet the workplace
consider the duty to accommodate any limitations to the point
of undue hardship; and
document, document, document!
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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