Labour and Employment Law Blog

A recent decision from the Alberta Human Rights Commission serves as a good reminder to employers to keep sufficient notes and document reasons to justify the termination of employment of employees, even in not-for-cause situations. For employees, the same decision serves as notice that the mere fact of having immutable characteristics or belonging to a protected group is not sufficient to prove discrimination. Claimants must present something more than assumptions and speculation when arguing that their employer has discriminated against them.

Brown v Caregivers Home Health Care Inc., 2023 AHRC 59, which was released on May 23, 2023, involved the termination of employment of a 61 year old woman, Marion Brown. Ms. Brown complained that her employer, Caregivers Home Health Care Inc., had discriminated against her in the area of employment on the protected ground of age, in contravention of the Alberta Human Rights Act. Although it was without cause, the respondent employer argued that the decision to terminate Ms. Brown’s employment was taken as a result of concerns with her job performance. The respondent employer was able to provide evidence, through the statements of four individual witnesses, which the Commission accepted, that Ms. Brown had been made aware of issues with her job performance and that it was the reason for the termination.

In dismissing Ms. Brown’s complaint and request for review, the Commission relied on a 2019 decision of the Alberta Human Rights Commission, Hogan v. Syncrude Canada Ltd., 2019 AHRC 32, which held:

…in advancing a claim of discrimination, in which the complainant seeks to have a decision maker draw an inference, the complainant must do more than establish that he has a disability, that certain adverse actions were taken, and he believes that his disability was a factor in those actions. There must be some facts alleged, which the complainant proposes to prove through the calling of evidence, which can reasonably be taken to show a link between the adverse treatment and a ground of disability. This is not a high standard, but it requires more than an assertion or even a sincere belief.

Similarly, in 2020, the BC Human Rights Tribunal in Li v. Options Community Services and others, 2020 BCHRT 104, dismissed the complaint of an employee who claimed discrimination on the basis of age because her employer first reduced her hours and then terminated her employment altogether. Although Ms. Li was one of the older members of her department, the respondent employer was able to provide evidence that its decision was based on legitimate business reasons, a reduction in funding, something it had communicated to Ms. Li.

In a 2012 decision of the BC Human Rights Tribunal, Gandy v. Kelowna U Weight Loss, 2012 BCHRT 441, the respondent employer was able to defend a claim of age discrimination by presenting evidence of poor job performance in the form of sales data before and after the termination of the claimant’s employment.

However, in Price v. Top Line Roofing, 2013 BCHRT 306, the respondent employer could not justify its decision to terminate the employment of a 60 year old and 53 year old employee apparently due to a shortage of work, but then also hire two young employees to replace them. The circumstances of this case required an explanation which the employer was unable to provide. In this decision, the Tribunal concluded:

There is no doubt that age, as in aging and the lack of capacity to perform work, can be inextricably linked. An employer cannot terminate employment based on stereotypic assumptions about age, but there may be circumstances when the reasons for termination are related to declining performance. If job performance is the issue, an employer must treat the older employee with the same respect accorded to all employees, that is, notice of the job performance problems and an opportunity to meet the workplace standard. If a disability is involved, the employer has a duty to accommodate. It is a case-by-case assessment.

In this case, I find that Mr. Price has established a prima facie case of discrimination. The evidence about the hiring of a younger journeyman and two apprentices and, shortly thereafter, the lay-off of Mr. Price and A, allowed me to reasonably infer that age was a factor in Mr. Price losing his job. 

Also, in Hubbs v. Advanced Healing Arts, 2014 BCHRT 176, the Tribunal declined to dismiss the complaint of a 73 year old complainant who alleged she had been dismissed from her employment as a result of age discrimination. In this case there was evidence of a negative work environment and age-related comments and a refusal to promote the complainant to the position of office manager even though she was praised for her performance. Thus, without sufficient justification, the employer was unable to rebut the allegation of age discrimination.

The lessons from all of these cases for our employer clients, when deciding to terminate employees without cause, is:

• Communicate your reasoning to them.
• Help them understand your decision.
• Keep notes and records.
• Document reasons relating to the termination, particularly where age or another protected ground may be viewed as a factor.

If you have any questions related to the termination of an employee, please contact a member of our Labour, Employment & Human Rights Group.