HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gail Weiler
Applicant
-and-
Farncomb Kirkpatrick & Stirling Surveying Ltd. o/a FKS Land Surveyors, Robert Stirling, Daniel Caldwell and Murray Fraser
Respondents
CASE RESOLUTION CONFERENCE DECISION
Adjudicator: Kaye Joachim
Indexed as: Weiler v. Farncomb Kirkpatrick & Stirling Surveying
AppearanceS BY
Gail Weiler, Applicant ) Philip B. Morrissey,
) Counsel
Farncomb Kirkpatrick & Stirling Surveying Ltd. ) on their own behalf
o/a FKS Land Surveyors, ) and on behalf of the
Robert Stirling, Daniel Caldwell, ) corporate respondent
and Murray Fraser, Respondents )
1This is an Application filed September 8, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint was filed with the Ontario Human Rights Commission on August 7, 2006 and abandoned upon the filing of the present Application. The Case Resolution Conference in this matter took place on April 22, 2009.
2The corporate respondent is a land surveying company with approximately 16 employees and corporate officers. The respondent Robert Stirling is the President, Daniel Caldwell is the Secretary/Treasurer and Murray Fraser was a salaried employee and shareholder, now retired. The applicant began working for the corporate respondent in 1992. Her duties including accounting, reception and general office functions.
3The applicant alleges that her employer forced her to identify a retirement date of December 31, 2005 and refused to continue to employ her after that date because of her age. The respondents assert that they requested the applicant to indicate her retirement date for corporate planning purposes and declined to extend her employment beyond the identified retirement date for reasons unrelated to her age.
Chronology of Events
4In early 2000, Mr. Stirling approached the applicant and asked her what her long-term employment plans were and asked her to identify a date when she intended to retire. The applicant was 58 years old at that time and had been working for the company approximately eight years. There was no corporate policy requiring all employees to establish a fixed retirement date and the applicant was the only employee asked to do so.
5Mr. Stirling’s uncontradicted evidence is that he had concerns about the applicant’s job performance, including her use of office time to chat to family members, her unwillingness to become familiar with important survey-related concepts and doubts about her capacity to adapt to proposed new software applications. Mr. Caldwell agreed with Mr. Stirling’s assessment of the applicant’s work performance at the time. However, apart from the telephone use, neither of them advised the applicant of their concerns or warned her that her employment was in jeopardy if there was no improvement.
6Although Mr. Stirling did not consider these matters to be serious enough to terminate her employment, he decided that he wanted to know her long term employment plans, in order to plan for the future. He intended to address these performance issues if she continued to be a long term employee or defer addressing these issues if she intended to retire in the near future.
7The applicant testified that she was surprised by the request and felt obliged to provide a retirement date. She provided a letter dated March 22, 2000 indicating that she intended to retire on December 21, 2002. She testified that she provided the letter “under duress” out of fear that her employment might otherwise be terminated. However, she also testified that no one told her that she would be fired if she did not provide a specific retirement date, or told her that she could not indicate a retirement date well into the future.
8As it turned out, the applicant did not retire as planned. In 2002, she discussed with Mr. Stirling the possibility of continuing beyond December 2002 and it was agreed that she could do so. No new date for her retirement was confirmed in writing although Mr. Stirling understood that the retirement had been deferred to December 2003. However, December 2003 passed without any action on the applicant’s part to retire, or the respondents’ part to replace her.
9Mr. Stirling testified that in 2004 he felt that the situation had dragged on long enough and he needed to know the applicant’s retirement date because he preferred to defer the implementation of a new software system until after the applicant’s retirement, if that date was imminent. He testified that it made good business sense to train one, rather than two employees on the new software system, if the applicant was intending to retire in the near future.
10Accordingly, in early 2004 Dan Caldwell was assigned the task of confirming a firm retirement date from the applicant and hiring a replacement employee. Mr. Caldwell did not follow through on this task until June 2004, at Mr. Stirling’s insistence. Mr. Caldwell approached the applicant and asked her to provide written confirmation of her intended retirement date. Again, the applicant testified that she felt pressured to identify an early retirement date out of fear that her employment would be terminated. However, she also confirmed that no one told her she could not choose a date well in the future. The applicant submitted a letter indicating she would retire effective December 31, 2005.
11The personal respondents jointly signed a letter signed on July 5, 2004 accepting her retirement effective December 31, 2005.
12In February 2005, Mr. Stirling and Mr. Caldwell interviewed two candidates to replace the applicant after her retirement. They made a verbal offer to one candidate to begin in the late fall of 2005 to overlap with the applicant for training purposes.
13In May 2005, the applicant’s husband died suddenly. The applicant wrote to the respondents in August 2005 asking to defer her retirement beyond December 31, 2005 for financial reasons and because she desired to keep working to cope with her loss.
14On September 5, 2005, the partners jointly refused her request to defer her retirement date because they had already made arrangements to hire a replacement.
15The applicant continued to work for the applicant until December 13, 2005 at which point she retired (a little earlier than the scheduled date for reasons that are unimportant to this decision). She continued to work two days per week on a consulting basis from January to June 2006 to assist in the transition to the new software systems.
16The applicant made no efforts to look for alternative work but has done volunteer work and occasional reception work at an hourly rate.
Issues
17There are three issues in this case:
Was the request to the applicant to identify a specific retirement date a form of age-related discrimination?
Was the respondents’ refusal to defer the applicant’s retirement date a form of age-related discrimination?
If discrimination is established, what is the appropriate remedy?
Was the request to the applicant to identify a specific retirement date a form of age-related discrimination?
18I find that the respondents’ request to the applicant to specifically identify her date of retirement in 2000 and again in 2004 amounts to age-related discrimination. I accept Mr. Stirling’s evidence that the request in 2000 was prompted by concerns about the applicant’s job performance. However, his response to the job performance concerns was clearly related to her age. Had the applicant not been in the range of retirement age, he would not have asked her to state a date of retirement. Based on Mr. Stirling’s evidence that he wanted to know whether to address the applicant’s performance issues or not, I infer that for an unsatisfactory employee of a significantly younger age he would not have requested a retirement date. He would have taken steps to address the performance issues or ended the employment relationship.
19I understand that from the respondents’ perspective, they tolerated some performance concerns over five years in order to permit the applicant to voluntarily retire. They believed that this approach was compassionate, as was their response to the death of the applicant’s husband. In addition to closing down the office for the day so staff could attend the funeral, and granting several days of bereavement leave, the respondents tolerated an increasingly deteriorating work performance. The respondents feel betrayed by the applicant’s claim that she wanted to continue working, when she herself identified the retirement date.
20From the employer’s perspective, the applicant may have benefited from being asked to provide a retirement date, as they did not criticize her performance weaknesses and permitted her to retire with some dignity. Also, had her performance not improved, her employment may have been terminated earlier than 2005.
21From the applicant’s perspective however, having never been told that her performance was substandard, she was effectively deprived of any opportunity to improve. The decision to remove this option by requesting her to provide a retirement date, however well intentioned, had a negative impact on the applicant. She felt that she was being urged to retire. When an employer asks repeatedly when an employee intends to retire, such a perception is well founded.
22Further, I find that Mr. Stirling, who was the chief driver of the retirement option, was influenced by conscious or unconscious ageist stereotypes. Mr. Stirling testified that he delayed implementing two software programs in the office for five years because he had doubts about the applicant’s capacity to work with the new systems. While this assumption of her capacity may have been based in part on her failure to adapt and utilize the survey terms required in the office, it appears to have been based, at least in part, on an assumption that she was not capable of learning the new system. This is consistent with a stereotypical assumption that older persons are less adaptable or able to learn new technologies.
Was the respondents’ refusal to defer the applicant’s retirement date a form of age-related discrimination?
23The respondents also refused the applicant’s request to defer her retirement date. The applicant relied heavily upon an uncontradicted statement made by Mr. Stirling to the applicant in the late fall of 2005. The applicant testified that Mr. Stirling said something to the effect that there was a time for everyone to move on and that perhaps this was her time to move on. The applicant asserts that this comment reflects an ageist stereotype that persons of a certain age should be prepared to retire. Having regard to the fact that this statement was made after the death of the applicant’s husband and near the applicant’s retirement date, I am not satisfied that this comment establishes that ageist assumptions were at play in the respondents’ decision not to defer the applicant’s retirement. The comment is equally consistent with the type of statement any person would make to a recently bereaved person or a long term employee whose services are no longer required.
24The applicant’s counsel questioned the corporate respondent’s choice in choosing to honour a verbal commitment to a prospective employee over its existing obligation to a long-term, recently widowed employee. The employee who replaced the applicant was approximately 40 years of age and the applicant suggests that it should be inferred that the choice must have been influenced by the applicant’s age (then 63). Applicant’s counsel also submitted that the letters of retirement had no legal effect, as there was no consideration for the contractual promise to retire.
25My task is not to determine whether there was a legally binding contract between the applicant and the respondents obliging the applicant to retire in December 2005, or whether the letter of retirement relieved the respondents of their obligations under the employment contract. Nor am I obliged to determine the fairness or justice of the respondents’ choice between the applicant and the prospective employee.
26The only issue before me is whether a factor in the respondents’ decision not to permit her to continue her employment was related to her age. I find that it was not. I accept that the respondents decided not to permit the applicant to rescind or defer her retirement date because they had made alternative tentative arrangements to hire someone else because they understood that she was retiring. While I have found previously that asking for a specific retirement date was an act of discrimination, I do not find that it was a continuation of that discrimination to rely upon the date voluntarily given. I will address the voluntariness of the selected retirement date below.
If discrimination is established, what is the appropriate remedy?
27The applicant testified that she would have continued to work until the age of 65 (2007) if the respondents had not forced her to identify an earlier date of retirement. Her counsel claimed that an award of one year’s wages would be a reasonable estimate of the income loss she experienced as a result of the discrimination. I disagree.
28Although I found earlier that the respondents’ repeated requests to the applicant to identify a retirement date were an act of discrimination, I find that the applicant chose the retirement date of her own volition. She could have chosen a date of 2007 if she had wanted to work until age 65. While there was some pressure on the applicant to establish a fixed retirement date, there was no pressure with respect to the actual date. The applicant testified she believed that if she did not establish an earlier retirement date, the employer may have chosen not to continue to employ her. That belief may have been well founded, as Mr. Stirling had identified to her some concerns about her performance. I find that the applicant’s choice to choose a fixed retirement date rather than expose herself to termination of her employment for cause or with notice was not coerced.
29Accordingly, I find that she is not entitled to any loss of wages beyond December 31, 2005.
30Alternatively, I find that the applicant made no efforts to look for employment. The applicant was aware since July 5, 2004 that her employment was coming to an end by December 31, 2005. She took no steps before or after that date to find other employment.
31The applicant stated that her self-esteem had suffered a blow as a result of what she perceived as the forced retirement and she could not face going to interviews. She also doubted that anyone would employ someone aged 63 (as of December 31, 2005).
32While I empathize with the applicant’s trepidation about going on the job market after 13 years, I find that the applicant failed to take any steps to mitigate her loss, and is therefore not entitled to any lost income.
33However, the applicant is entitled to an award of damages to compensate her for the injury to her dignity arising from the breach of her right to be free from age discrimination. I accept the applicant’s evidence that she felt pressured to set out retirement dates at a time she was not thinking about retirement. While her evidence of the impact of this form of discrimination was very brief, the actions of her employer did insult and hurt her. In all the circumstances, including the repeated nature of the requests, I find that an award of $3,000.00 inclusive of pre-judgement interest is appropriate in the circumstances
34In my view, although Mr. Stirling was the driving force to confirm a retirement date, Mr. Caldwell also directly contributed to the discrimination by asking the applicant to identify her retirement date in 2004. Accordingly, I find that they should be held jointly and severally liable with the corporate respondent for the breach of the Code.
35Mr. Fraser’s only participation in these events was his signing of the letter of September 5, 2005 refusing to permit the applicant to defer her employment. I have found that this refusal did not amount to a breach of the Code. Accordingly, I find that Mr. Fraser did not breach the applicant’s rights under the Code and the Application against him is dismissed.
Order
36The corporate respondent and respondents Stirling and Caldwell are jointly and severally ordered to pay to the applicant:
a) the sum of $3,000.00 for loss arising out of the infringement of the Code; and
b) post-judgment interest on the above at the applicable rate under the Courts of Justice Act commencing 30 days from the date of this Order.
Dated at Toronto, this 29th day of April, 2009.
“Signed by”
Kaye Joachim
Alternate Chair