By Howard Levitt and Peter Carey
“To everything there is a season.” So says the Bible and the Byrds. Sooner or later (usually later), most employees start thinking about retiring — except lawyers. Old lawyers don’t retire, they just lose their appeal!
Since retirement is the natural order of things and thousands of people retire every week, you would think the process would have been all worked out by now. Unfortunately, this is not the case. We frequently encounter situations where both employers and employees are at odds about when the employee will retire. These situations often lead to litigation, which would be preventable if everybody was aware of a few simple facts.
The first and most important principle is that an employee cannot be forced to retire — even if the employee has a full pension ready and waiting to kick in once they do. Under human rights legislation, an individual cannot be discriminated against on the basis of age.
Some employers think that when an employee reaches retirement age, it is okay to fire them without notice, or with the minimal notice required by employment legislation. It is not. That would not only be a wrongful dismissal, but would also constitute discrimination.
This can be very expensive for the employer, who, in addition to paying notice to the departing employee, could be forced to pay additional damages for the violation of the employee’s human rights.
The notice required in such cases can be substantial, for several reasons....
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