Wrongful Dismissal: Does an Employee's Age Matter?
Wrongful dismissal-does age matter? The answer is yes, of course it does. The age of the terminated employee is always an important variable in the calculation of severance. Our courts of told us that an older employee will often have a difficult time obtaining alternate employment and therefore considerable weight will be given to the age of the employee.
In the case of Law v. Canada the Supreme Court of Canada said the following: “The increasing difficulty with which one can find and maintain employment as one grows older is a matter of which a court may appropriately take judicial notice. Indeed, this court is often recognized age is a factor in the context of labor force attachment and detachment.” The court went on to say, and referencing another case,”barring specific skills, it is generally known to persons over 45 have more difficulty finding work than others. They do not have the flexibility of the young, a disadvantage often accentuated by the fact that the latter are frequently more recently trained in the more modern skills.”
In the case of Iqbal Sahota v. Western Fibres Limited a 48 year old plaintiff had word for the defendant company for 20 years. In awarding the plaintiff employee 14 months notice he referenced his age, saying that there is a connection between the employee’s age and the attainment of the primary objectives of notice. “This is not a new or radical concept. In Law v. Canada (Minister of Employment and Immigration),  S.C.J. No. 12 Iacobucci J., writing for the court, acknowledged that judicial notice of the connection between an employee’s age and his/her ability to find alternate suitable work provides the juristic basis for the role played by an employee’s age when determining what constitutes reasonable notice. Mr. Justice Iacobucci, citing the 1990 decision of the Supreme Court of Canada in McKinney, said the Court has often recognized age as a factor in the context of labour force attachment and detachment.
However, it is important to note that while age is an important factor in determining severance, an employee not being in his or her advanced years will not necessarily militate against a very significant notice. If other relevant variables for the calculation of reasonable notice are present.