Why Age Matters in Wrongful Dismissal Claims

Age matters in wrongful dismissal claims. Older employees are often - although not always - entitled to longer notice periods than their younger counterparts. But it is important not to forget about why age is an important consideration in wrongful dismissal claims.

Why does severance depend on age?

To understand why older employees often receive longer notice periods, it is helpful to think about the purpose of a reasonable notice period. The primary objective of a reasonable notice period is to provide the terminated employee with a reasonable opportunity to seek alternate suitable employment.

Courts recognize that the amount of notice that is 'reasonable' - usually somewhere between 1 and 24 months - will always depend on the unique circumstances of each dismissed employee. Individuals who can be expected to find new employment quickly will usually be owed a shorter notice period. Individuals who can be expected to face significant challenges locating new employment will usually be owed a longer notice period. Our courts have identified four main factors that should be taken into consideration when deciding what is a reasonable notice period for any given employee:

  1. The character of the employee's employment;
  2. The length of service;
  3. The age of the employee; and
  4. The availability of similar employment (having regard to the experience, training, and qualifications of the employee).

The 3rd factor - the age of the employee - is important because courts recognize that older employees often face more difficulty finding new employment than younger employees. The Supreme Court of Canada, in Mckinney v. University of Guelph (which is not a wrongful dismissal case), described the challenges that are faced by older employees:

Barring specific skills, it is generally known that persons over 45 have more difficulty finding work than others. They do not have the flexibility of the young, a disadvantage often accentuated by the fact that the latter are frequently more recently trained in the more modern skills. Their difficulty is also influenced by the fact that many in that age range are paid more and will generally serve a shorter period of employment than the young, a factor that is affected not only by the desire of many older people to retire but by retirement policies both in the private and public sectors.

Wrongful dismissal examples

Because of the challenges faced by older employees seeking new employment, they often receive longer notice periods than comparable younger employees. See, for example, three BC Supreme Court wrongful dismissal decisions commenting on the effect of an employee's age:

On the other hand, it is important to appreciate that age is not always an obstacle to finding new employment. Sometimes, older employees have skills and experience that make them as attractive as (or sometimes even more attractive than) younger and less experienced employees. In those cases, there is no reason why an older employee should receive a longer notice period than younger employees. The Yukon Court of Appeal, in Cabott v. Urban Systems Ltd., explained why age does not always justify a longer notice period:

It is not invariable that a mature person will have difficulty securing a new position. Some occupations by their nature are more likely to be occupied by individuals who, as a consequence of wisdom, experience and reputation acquired over the years, are older.

While the general rule is that older employees are entitled to longer notice periods, it is important not to lose sight of why age matters. If, in a particular case, it can be shown that an older employee's age is not a obstacle to finding new employment, then the employee's age will not justify a longer notice period.

brendan harvey - wrongful dismissal vancouver
About the Author

Brendan Harvey advises and represents employees and small businesses at all stages before, during, and after the employment relationship. His primary areas of practice include wrongful dismissal, employment standards, and human rights litigation. If you would like to schedule a meeting with Brendan Harvey or any other of our lawyers, give us a call at 604-988-1000.

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