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THE QUESTION
I was hired in 2020 as the director of HR for a family-owned company. One of the mandates when I was hired was to coach and mentor the young HR generalist they had hired the year before to see if he was a viable succession plan for my role.
In 2024, the HR generalist was promoted to HR manager. Two months ago, I met with the owner to discuss succession planning. I told him I was 62 years old and intended to retire in two years. Then, last week, my employment was terminated. I’ve been offered 14 weeks’ severance, which I don’t believe will allow me to find a comparable position. Does my age and the discussion regarding retirement affect what would be considered a reasonable severance?
THE FIRST ANSWER
Waheeda Ekhlas Smith, barrister and solicitor, Smith Employment Law, Toronto
Your question raises two main issues: 1) did you have an enforceable employment contract that limits you to the 14 weeks’ severance offered and; 2) did your age and specifically the retirement discussion influence the termination?
Employers can generally let go of non-unionized employees at any time and without having to provide cause or a reason (as long as the termination was not illegal or discriminatory). However, if an employee is terminated “without cause”, their employer must provide them with reasonable notice of job termination or payment in lieu of notice, usually referred to as a severance package. The amount that a person receives on termination can depend on a few factors. If you did not have an enforceable employment contract limiting you to your minimum entitlements under your province’s employment standards act or code, your common law notice or “severance period” could be significant – a minimum of six months. Your age is, in fact, one factor that influences the length of your common law notice period.
Now, did the retirement discussion influence the termination? It may have as the time between your conversation and your termination was short. If you are an Ontario employee and your employer terminated you because of your age, you can bring a claim for age-related discrimination under the Ontario Human Rights Code. However, as the employee, you bear the burden of proof that discrimination occurred and that it was more likely than not that your age was one factor in your dismissal. If you are successful, you can receive lost income, “general damages” for loss of dignity, reinstatement at the company and other damages.
I recommend that you consult an experienced employment lawyer as you are likely entitled to more than the offered 14 weeks.
THE SECOND ANSWER
Cynthia Lazar, labour and employment lawyer and workplace investigator, Taylor McCaffrey LLP, Winnipeg
You actually made two disclosures to your employer – your age and your intention to retire. These should be examined separately.
If your employment was terminated because of your age, you likely have a human rights claim which can be leveraged to negotiate an increased notice period. “Age” is a protected characteristic under human rights legislation across Canada. If the termination is unrelated to your age, for example, because the HR manager is doing well and you are not needed, there is no human rights violation and your notice period will not be affected. If you suspect age discrimination and want to file a complaint, you will have to prove your case. This will be difficult without more evidence than you have provided. First of all, your employer probably knew your age before your disclosure, and the decision to terminate would therefore be unrelated to your disclosure. Secondly, two months passed from the date of disclosure to the date of termination. This makes it appear less likely that your disclosure caused the termination.
With respect to the disclosure that you intend to retire, an intention to leave employment is not necessarily tied to age and is not a protected characteristic. While it would not be “just cause” for termination, your employer does not appear to be relying on cause. It is not unreasonable for an employer to terminate the employment of an employee who they know plans to leave. In short, they may be terminating because you plan to leave, not because of your age. Your notice entitlement would not be affected.
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