Managing the end to mandatory retirement

by Keri Bennett

As we reported previously, the Canadian 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 then? According to the Canadian Human Rights Commission, very little.

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 to force employees to retire before they are ready to. In the 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.”

Takeaway 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 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 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 occupational requirement, or BFOR.

As we have said before, once December 15 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.

What’s next?

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 become increasingly important.

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  Keri Bennett
  Keri Bennett engages in a broad labour and employment practice advising public and private sector organizations on all aspects of the employment relationship. Keri represents clients in matters before the BC Labour Relations Board, BC Human Rights Tribunal, BC Employment Standards Branch, the Workers' Compensation Appeal Tribunal, the courts, and labour arbitrators. Keri previously was an associate in the Toronto office of Fasken Martineau LLP and represented clients in matters before Ontario courts, tribunals and labour arbitrators.