As we reported previously, the Federal government is about to join most of the provinces in making mandatory retirement, for the most part, unlawful. That deadline is fast approaching - December 15, 2012. What can employers do until December 15, 2012? According to the Canadian Human Rights Commission, very little.
The Human Rights Commission News Release
Earlier this year, the Canadian Human Rights Commission issued a news release cautioning employers against using the time leading up to December 15, 2012 to force employees to retire before they are ready to. In the news release, Acting Chief Commissioner David Langtry said that “[t]he transition period should not be viewed as a license to force aging workers out the door. Forcing someone to retire because of their age clearly contradicts Parliament’s intent, even if a defence in the law still appears to be available.”
Take Away for Employers
The Canadian Human Rights Commission is clearly suggesting that federally regulated employers should not use these last few months leading up to December 15, 2012 as a “race to the finish line” where current employees are potentially still subject to mandatory retirement. Instead, it may be more prudent for federally regulated employers to govern themselves in the regime that will exist following December 15, 2012 where they:
- may still offer voluntary retirement programs; and
- may be able to justify mandatory retirement where they are able to show a bona fide work requirement or “BFOR”.
As we have said before, once December 15, 2012 comes and goes, federally regulated employers will not be able to simply “wait out” the performance issues of their older employees. Instead, we recommend that employers start implementing effective performance management programs for all their employees, including older employees.
It remains to be seen if employers will be subject to a greater number of age discrimination complaints because of the elimination of mandatory retirement throughout most of Canada. Being able to demonstrate that a termination or other employment-related action was based on something other than age will only become increasingly important.