Author: Daniel A. Lublin
Failure to respond to entreaty amounted to affirmation of dismissal
Your very silence shows you agree. – Euripides
At the age of 66, Kathleen Fisher found herself in a pickle. Believing she was being forced to retire, she turned to her company president, Keith Andersen, looking for answers. Anderson may not have agreed – but he offered no solution. As a B.C. appeal court recently concluded in finding Fisher was dismissed: his silence spoke volumes.
A staffer for 18 years, Fisher had been doing general office administration work for B.C. lumber manufacturer Lakeland Mills Ltd. Visitors to the office knew Fisher and often raised her retirement date in conversations. When these inquiries lost their entertainment value to Fisher, she spoke with Anderson, seeking an assurance her job wasn’t in jeopardy. Andersen’s response was swift: there was no concern, and Fisher could hang on as long as she wanted.
When a fellow employee later resigned, Lakeland’s office manager went looking for solutions to fill the labour void. The answer became obvious. Fisher would be trained to work as a backup shipping clerk. Despite steps taken to train Fisher, she couldn’t master the new duties and was uncomfortable with her evolving role.
Fisher spoke with the office manager, who told her that if she were planning to retire soon, the company would get along with her in the backup role. But if Fisher planned to retire in the distant future, another employee would have to be hired, who would ultimately take on some of Fisher’s old responsibilities.
Believing that she either had to learn the new job or Lakeland would take steps to hire someone to take over her former role, an upset Fisher met with Andersen, telling him that she felt she was being forced to retire because she could not handle the shipping relief work. Andersen may have been sympathetic but said nothing to disabuse Fisher of her perception.
The doctrine of constructive dismissal permits an employee to reject material changes to her job and consider herself to have been dismissed instead. In this case, Fisher argued that Andersen’s silence was an affirmation that she was obliged to take on the shipping relief duties or simply leave. Recently, the B.C. Court of Appeal agreed, finding that what started as an innocent staff reorganization ultimately amounted to Fisher’s constructive dismissal.
This case highlights the challenges that both employers and employees face as the Canadian workforce ages:
- Recent legislation has caused companies in most Canadian jurisdictions to discard their mandatory retirement policies. Consequently, if they wish to free themselves from older employees, the customary employment law principles regarding severance will have to be considered and then provided.
- Although there is no legal distinction between an older employee and his younger counterpart, workplace changes should be considered under the lens of the employee’s ability to adapt. The changes to Fisher’s job, however minor, were magnified when her age limited her ability to respond to the new work or her employer’s efforts to train her.
- Employers may have an obligation to propose alternatives in the face of a suggestion that a job has changed. Otherwise, the failure to react may be deemed an affirmation that a change has occurred.