Since Ontario eliminated mandatory retirement back in 2006, age has become one of the most often-cited grounds for discrimination in human rights case law. In Zholudev v. EMC Corporation of Canada, 2012 HRTO 626, the Ontario Human Rights Tribunal scrutinized an employee’s allegations of age discrimination in the context of the employer’s promotion and termination practices.
The employee was employed in a non-managerial role as a Senior Software Engineer from 2000 to 2009 when his role was eliminated and outsourced to India. He possessed a Master’s Degree in Engineering and he obtained a Masters Degree in Business Administration in 2008. The employee, between the age of 46 to 48 years old, was preoccupied with obtaining a job in management and alleged that he had been passed over for six promotions because of his age. He also alleged all the successful employees were between 11 to 17 years younger than him. In the employee’s opinion, his age and his complaint about lost promotions were factors in why he was targeted for termination.
Rather than hear evidence, the employer brought a motion to have the case dismissed on the basis there was no reasonable prospect of success and that many of the employee’s allegations had a tenuous connection to age. The Tribunal agreed and systematically dismissed each of the employee’s complaints and in doing so made the following comments with respect to the six job promotions and the employee’s dismissal:
- The employee alleged that he asked his supervisor if there were any management positions open and the supervisor said no and then hired someone younger. The Tribunal held that the employer had just reassigned an employee and dismissed the complaint
- The employee alleged he was passed over for a promotion to a younger individual. The Tribunal dismissed this complaint because the employee never applied for the job
- The employee alleged that an individual hired for a job was younger, and given his skills were equal or superior, he (the employee) should have been offered the job. The Tribunal held that the successful individual’s skill set greatly exceeded the skills of the employee, and the employer clearly made the correct choice in hiring him
- The employee challenged the results of an interview on the basis he did not get as much time to prepare as the younger, successful individual. The Tribunal dismissed this argument on the basis that the successful individual’s skills greatly exceeded the employee
- While the employee challenged another management vacancy, he conceded at the hearing that he was not qualified for the job
- The Tribunal dismissed another challenge made by the employee regarding a management vacancy on the basis it was speculative and not supported by the facts
- Finally, the employee said he was terminated as a result of a reprisal for complaining about not getting any promotions and because of his age. The Tribunal dismissed this argument on the basis the employee’s job was clearly outsourced to India
This case reinforces the obvious. In order to allege discrimination based on age in promotion and dismissal cases, an employee needs to connect the alleged discriminatory conduct directly to the prohibited ground in order to establish a prima facie case of discrimination.
Principal of Heath Law, Employment Lawyers
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