Wrongful Dismissal: How Old is too Old?

Despite the fact that people are successfully continuing to work past the age of retirement, wrongful dismissal cases involving ageism is a growing problem. Employers are less interested in loyal, long term service in favour of cheaper salaries for the less experienced, younger generations. Once you’re over the age of 50, this reality makes keeping a job or finding a new one a difficult task. When a seasoned employee with a specialized skill set is viewed as more of a liability than an asset, wrongful dismissal is usually the result.


Wrongful Dismissal- Fired Because of Her Age?


Our example comes from a Supreme Court case between a 55 year old woman who started her career as a clinical nurse and worked at a local hospital. She left voluntarily after 9 years, accepted employment with another health council and eventually became director of acute care, an enormous responsibility with over 350 full-time staff.


Over the course of her career, the BC Ministry of Health merged several hospitals and health boards, including the hospital the plaintiff initially worked at. This newly formed regional health authority provided new contracts for all employees, including the plaintiff, promising that their years of service and benefits from all merged health care associations would be transferrable. After 16 years of service, she was fired without explanation and asked to leave the premises that same day.


Wrongful Dismissal- Cold, Calculating Moves of the Employer


To add insult to injury, the health authority claimed that she was only entitled for pay in lieu of notice for 12 months, when she should have received 22 for her 16 years of service. And, yet, they recognized that she was eligible for full vacation benefits for the entire 16 year stretch. The employer claimed the calculations were valid and according to contract. The employee refused to sign the release for the termination and filed suit for wrongful dismissal.


The employer freely admitted that they gave no cause for her termination and offered no explanation for her dismissal. The court recognized that the employee would have no way of explaining herself to potential employers and this would make it more difficult for her to find new employment.


She was consistently promoted, praised for her work and, at the time of her wrongful dismissal, she was expecting an increase in salary. The defendant claimed that the positive performance reports were inaccurate as there was cause for concern over her work throughout her employment history. They weren’t able to provide any proof and the court disregarded the statement.


Furthermore, the health authority had 5 similar positions available in her profession, yet she wasn’t offered any of them.


Wrongful Dismissal- The Courts Recognize the Difficulties Older Employees Face


The court made a specific point about the difficulty of finding new employment for those over the age of 50. The plaintiff’s age, specialized field and the fact that she was not given any reason for her termination was considered a hindrance for future employment.


Not only was the employment contract found to be ambiguous and unenforceable, written performance reviews indicated that the defendant was entitled to receive the mandatory pay raise. The courts also acknowledged the difficulties of finding work considering the plaintiff’s age, specialized field and the fact that she was not given any reason for her termination.


As a result, she was awarded full compensation across the board, including vacation pay, health benefits, retirement allowance and banked sick leave. This would have resulted in 22 months’ notice; however it was reduced to 18 months to comply with the Employment Law Termination Standards Regulations.


If you feel like you may be a target for wrongful dismissal, please contact Wrongful Dismissal Lawyer, Bob Yeager

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