Millions of working Canadians have seen their employment impacted by the COVID-19 pandemic.
Some employees have seen a significant reduction in their pay or hours of work. Many others have been thrust into the limbo that is a temporary layoff, where they continue to wait for that text or phone call inviting them back into the workplace.
In those cases, employers may have essentially terminated those workers through what is called a constructive dismissal, providing employees an avenue to collect a severance package to support them through an economic turndown.
Other employees have been outright dismissed, let go or fired by their employer.
One of the hardest-hit groups in the labour market throughout the COVID-19 pandemic could be those aged 55 and older.
The conclusion of a 2011 Statistics Canada study concerning the last three recessions found that in a severe economic downturn, a higher proportion of older Canadians with greater seniority were laid off compared to their younger counterparts. Here’s what you need to know if you’re in this demographic.
Can my employer fire me because of my age?
In Canada, an employer can terminate your employment at any time for nearly any reason, so long as that reason is not discriminatory. That reason could be a performance issue or something as trivial as an employee’s wearing a blue shirt to work when the manager prefers the colour red.
As long as the layoff is not discriminatory, your employer supplies you with a full severance package, and you have reviewed the severance package with an employment lawyer, such as the lawyers at Samfiru Tumarkin LLP, the termination is valid.
An employer cannot fire an older worker because of their age. That would make the termination discriminatory and a violation of the employee’s human rights under the Human Rights Code.
Some companies have suggested that they are dismissing older members of their workforce in an effort to protect them from COVID-19, as they tend to be more vulnerable to the effects of the new coronavirus. Employers may also argue that their senior staff are unable to adequately adjust to new technologies, such as those used by employees working remotely.
These excuses are not valid and do not justify a termination. A company using them to target older employees will likely be found to have engaged in illegal age discrimination.
How is severance pay calculated for older employees?
Severance pay is assessed by examining multiple factors. One of the most crucial components of this calculation is the employee’s age and time spent working for the company.
The older a worker is, and the more years of service or seniority they have with a business, the more severance pay they will be entitled to.
Nearly a decade ago, I developed the Severance Pay Calculator to provide an accurate and anonymous way to estimate severance packages. As the calculator may reveal, older workers who have spent an entire career at a single company could receive as much as 24 months’ pay.
If you are familiar with the Employment Standards Act in either Ontario or British Columbia, that last sentence may surprise you. That is because the Employment Standards Act only outlines a portion of an individual’s entitlements. It does not outline an employee’s full termination entitlements.
The employment lawyers at Samfiru Tumarkin LLP can help enforce your full severance pay rights under common law, which in some cases could be as much as two years’ pay.
The amount of severance pay owed to an older worker may also be impacted by a termination clause in their employment contract, but only if that termination clause is legally enforceable.
This is why it is imperative that you have your termination letter, severance offer and employment contract reviewed by a lawyer, such as those in my firm’s employment law practice, to determine the amount of severance you are actually owed.
Can my employer force me to retire?
Older employees are often told that they are expected to resign or retire. But there is no such thing as a forced resignation. The employee is the only one who can decide whether to retire.
If your employer insists that you retire, that in itself can be a termination and a violation of human rights laws. The concept of mandatory retirement no longer exists, and an employee has the right to continue working without regard to age.
It is important to remember that employment rights for workers young and old have not been suspended, even in the midst of the global pandemic.
Have you lost your job during the COVID-19 pandemic? Are you trying to determine if your severance package is fair?
Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario or British Columbia. Get the advice you need — and the compensation you deserve — during this crisis.
Lior Samfiru is an employment lawyer and partner at Samfiru Tumarkin LLP, one of Canada’s leading law firms specializing in employment law and disability claims. He is host of the Employment Law Show on TV and Radio.