Erik Marshall, Toronto
Mandatory retirement will be outlawed in
the federal sector (except where an employer can establish that the rule is a bona fide occupational requirement) as
of December 15, 2012. On December 15,
2011, the Parliament of Canada gave Royal Assent to Bill C-13, Keeping Canada’s Economy and Jobs Growing
Act. This legislation repeals section 15(1)(c) of the Canadian Human Rights Act that permits employers to terminate
employees because they have reached the normal age of retirement, and section
235(2)(b) of the Canada Labour Code
that provides that employees are not entitled to severance pay if they are
entitled, immediately upon termination, to a pension contributed to by their
employer. Both amendments come into
force on December 15, 2012.
The amendments bring the federal government
in line with the majority of Canadian provinces, where mandatory retirement has
been abolished in all provincial jurisdictions except New Brunswick. The new law also follows on the heels of
litigation before the Canadian Human Rights Tribunal and the Federal Court
concerning Air Canada’s mandatory retirement policy for airline pilots at age
60. The constitutional validity of
section 15(1)(c) of the Canadian Human
Rights Act was challenged in that litigation and the subsection was found
to be invalid as contrary to the Canadian
Charter of Rights and Freedoms. The
most recent decision of the Canadian Human Rights Tribunal in that prolonged
Air Canada litigation found that post 2006, the mandatory retirement of pilots
at age 60 was based solely on a bona fide
occupational requirement and therefore is not a discriminatory
practice.
The end of mandatory retirement presents significant
challenges for employers. For years
mandatory retirement was one of the key tools in an employer’s toolbox for the
purpose of transitioning the workforce.
More than ever, employers will need to ensure that they are
accommodating the needs of employees with disabilities up to the point of undue
hardship despite the fact that many of these employees’ disabilities may be
attributed to the common and generally accepted effects of aging on the mind
and body. Where the continued employment
of persons beyond the normal age of retirement carries with it serious concerns
with respect to health, safety and cost, employers may wish to consider whether
a rule that employees retire at a certain age is likely to qualify as a bona fide occupational requirement for
any positions within their organization as was the case with the pilots
involved in the Air Canada case.
Employers will also want to be diligent in ensuring that all employment
contracts, collective agreements and policies are reviewed for compliance with
the elimination of mandatory retirement in the federal sector prior to December
15, 2012.
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