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 apprentices.

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.