Written on behalf of Peter McSherry

The Human Rights Tribunal of Ontario (HRTO) recently discussed the issue of age discrimination in the workplace, and found that an employee who had claimed he had been fired in favour of a younger employee had failed to establish a link between his age and the termination.

What Happened?

The employee in question was hired as a Managing Consultant, Upgrade Specialist in August 2015 (a Band 8 position). The employee was subsequently terminated in December 2015, about halfway through a nine-month probation period. The employee filed a human rights complaint, claiming that he had been fired because of his age, and had therefore been discriminated against.

The Employee’s Position: Age Discrimination 

The employee claimed that approximately one month before his termination, a younger employee was hired into a more junior Band 6 position. The employee alleged that his supervisor had informed him that she was looking to hire a young, junior person, with “little or no experience”. The employee helped with the hiring process for this position, including screening resumes, conducting interviews, and ultimately proposing two candidates for the supervisor to choose from. The employee emphasized that the supervisor ended up choosing the younger and more inexperienced of the two final candidates.

The employee further claimed that once the junior employee was hired the employer “created isolation” that affected his ability to perform his work. This alleged isolation included not providing him with access to all relevant parts of the computer system that he required to do his job, and not indicating that he was an active member of the team.

The employee believed that he had been performing at a “satisfactory level” and that there had not been any issues with his work.

The employee alleged that he had been terminated because the employer had decided to replace him with a younger employee. He argued that the employer knew that he was older based on his appearance, on information that HR had in his personnel file, and because they knew when he had graduated from various levels of education. The employee additionally claimed that the fact that he was terminated and the younger employee was not clearly demonstrates that he was “subjected to discrimination on the basis of age”.

The Employer’s Position: Performance Issues

The employer argued that the employee had been terminated for performance reasons, and not age related reasons. His offer letter had clearly indicated that he would be subject to a nine-month probationary period during which he could be fired for unsatisfactory performance. When performance issues became apparent, he was let go.

The employer explained that the employee had been hired from a pool of seventeen shortlisted applicants and chosen based on “what appeared to be his strong technical skills, 25 years of experience in upgrading client environments” and a number of other factors. The employee’s age was unknown to anyone outside of HR.

Moreover, the employer acknowledged that a younger individual was hired into the same group that the applicant worked in; however, that individual was in a different pay band in a significantly more junior role. The junior did not share any duties and functions with the employee.

The employer argued that the employee had failed to plead any facts that would establish a link between his age and the termination. The only allegation he made was that a younger person had been hired into a junior position before he was terminated. He had not, for instance, indicated that any negative age-related comments had been made to him, or that there had been an incident or situation from which it could be inferred that the employer had treated his adversely because of his age, or that his age played any part in the termination, or that the younger person had been hired to do the same job. The mere fact that the junior had been hired did not establish that the employer preferred younger employees.

The HRTO Decision            

The HRTO ultimately dismissed the application, finding that it had no reasonable prospect of success.

Firstly, the fact that a younger person has been hired (even if they had been hired into the same position as the employee, which they were not) was not sufficient to establish age discrimination.

Secondly,

….even accepting that [the employee’s] assertions that his supervisor was looking for and then hired the youngest and most inexperienced candidate, and that [the employer] including [his]  supervisor knew his age or could have calculated his approximate age from his educational and work experiences, I find that [the employee] is basing his Application on bald assertions, without being able to point to any supporting evidence which would establish that he was subjected to adverse treatment  because of age.

Moreover, the employee had not argued that the “youngest and most inexperienced candidate” was hired to specifically do his job, or was doing his job once they were hired:

…the fact that [the employee] was in a senior position, two pay grades above [the] “young” employee, undermines his position that he was terminated because of his age versus the age of the “young” employee. This is not a case in which a younger worker was allegedly hired to replace an older worker. Instead, this is a case where two different individuals were hired for two different jobs; one a more senior position and one a more junior position. In this context there is no basis to draw any conclusions or inferences about [the employee’s] employment status relative to that of the other employee. In this context, the fact that the younger employee was or was not terminated when [the employee] was terminated simply is not relevant to the question of whether age was a factor in [his] termination.

Further, even if the employee’s allegations that he had not been given access to all relevant computer systems needed to do his job, or that he was not listed as an “active” member of the team were true, they do not provide any link between his age and the alleged discrimination. There is no basis to infer any connection between the employee’s age and any such treatment.

Lastly, the fact that the employee was terminated during his probationary period did not lead to any inference that the termination was related to his age.

If you think you have been discriminated against based on your age, or any other ground prohibited by the Human Rights Code, I can help. As a Guelph workplace discrimination lawyer, I can protect your rights and work diligently for Human Rights Code compliance at your workplace. Contact me today by phone at 519-821-5465 or by e-mail to schedule a consultation.