In recent years, we have seen a significant change in the
profile of the workforce: more and more retirees are choosing to
return to the labour market or are finding it necessary to do so.
Employers need to be aware of the issues and questions raised by an
aging workforce. Note that the Charter of Human Rights and
Freedoms (the "Charter") provides that an employer
may make distinctions based on age "as provided by law".
The Charter also governs various aspects of the contractual
employment relationship, such as hiring and termination.
At the hiring stage, an employer may not, as a rule, hold an
applicant's age against them. This means that pre-employment
tests to narrow the field of candidates must not discriminate on
the basis of age, unless that distinction is necessary for the
purposes of the employment. For example, only individuals to whom
the employer is considering offering a position must be asked to
take a test.
This new workforce is making it necessary to review the way the
employment relationship is defined. Would a fixed-term contract be
more appropriate? Should an indeterminate contract be considered,
or should an individual be given consultant status and perhaps paid
more, but not given benefits?
Recruiting older persons means that a number of specific
considerations must be taken into account if the employment is
terminated. Age should not be a criterion in deciding to terminate.
On the question of the appropriate notice period, the circumstances
in which the individual was hired and the nature of the employment
must be taken into account—but how will the question of
whether the person will be able to find other employment be
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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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.
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.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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