The employee was a journeyman who had worked for Topline Roofing on and off for over 15 years. At the time of his dismissal, the employee had been continuously employed by Topline for about 4 years. In April 2012 the employer hired a journeyman in his 40's and two journeymen apprentices. In July 2012 the employee, age 53, and another journeyman, age 61 were laid off. At the time of their layoff, these were oldest journeyman employed by Topline.

The employee filed a complaint with the Human Rights Tribunal alleging that he was terminated because of his age. The employee sought just two months lost wages as a remedy because he was able to secure other work as a journeyman. The employee did not seek compensation for injury to dignity.

Topline argued that the employee was laid off due to a work shortage and poor performance. Several Topline employees testified that it was the company's practice to lay off employees when there was not enough work and then to call them back when the workload increased. Topline claimed that it typically laid off the weakest workers, though generally journeymen would be the last to be laid off.

Each of Topline's witnesses testified that the employee was a slower worker than other journeymen and that he had begun to display a poor work ethic by leaving work before jobs were finished. Topline claimed that they had informed the employee of their evaluation, but produced no documentation, nor did they document any specific instances of poor performance. Topline also claimed that they told the employee he would be called back when work picked up again, but provided no documentation. The employee disputed this claim and in fact was never called back. Topline also provided no testimony or documentation of the management discussion that ultimately led to the employee's termination.

The Tribunal found that the employee had been terminated as a result of his age. The tribunal concluded that the simple fact of hiring a younger journeyman and shortly thereafter laying off the two oldest journeymen created the impression that the age of the employees was a factor in their layoff. Under BC law, once such an impression is created, it is the responsibility of the employer to show that age was not a factor in the layoff. The Tribunal concluded that Topline had failed to show that age was not a factor in the decision. While several employees testified to performance concerns, none were documented. In addition, the discussions that resulted in the employee's termination were not supported by testimony or documented. As a result, Topline was unable to prove that age was not a factor in their decision to terminate the employee.

This decision is an important reminder to employers of the importance of documentation of performance issues and the risks and challenges related to the performance management of older workers. When making personnel evaluations and decisions, it is vital that employers document problems, efforts to make clear performance expectations, training, coaching and employee responses and conduct. This applies in every case of performance management. It is particularly critical where older workers are involved. In the absence of mandatory retirement the workforce is aging. Where performance problems arise in relation to an older worker that lead to termination, there will always be a suspicion that the termination was linked to prohibited age discrimination, unless evidence can be adduced to demonstrate that the decision was based on other legitimate considerations. It is analogous to a decision to terminate an employee for performance problems after she announces her pregnancy. In such circumstances, where a prohibited ground of discrimination is in play, employers must be particularly careful to document their decision making to ensure there is evidence to refute challenges on human rights grounds. If a complaint is ever filed, an employer will be required to show not only that they had non-discriminatory reasons for taking that action, but that the non-discriminatory reasons were the only reasons they took that action. If an employer is unable to do so, they may be liable to substantial damages for wage loss or injury to dignity.

Note: This a reprint of an article by Michael Torrance of Norton Rose Fulbright Canada LLP.