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Employer’s Age Related Comments Increase Dismissal Damages
October 10, 2008

The BC Human Rights Tribunal recently awarded $7,500 in damages for injury to dignity, feelings and self-respect, together with more than $8000 in respect of lost wages, to an employee who was dismissed from employment because of his age and disability.

The complainant was a 59 year old pasta-maker employed at a food manufacturing and distribution facility. His job involved continuous lifting and moving of large loads of flour and pasta dough. During the course of his employment, the complainant was diagnosed with acute gouty arthritis, necessitating a leave of absence. When he returned to work, the complainant noticed that a younger, stronger man had been hired to work in his area. In the complainant’s presence the employer made comments about the new employee’s strength, which the complainant said made him feel old, incompetent and incapable.

Problems worsened when the complainant was caught in a traffic jam on his way to work one day. Unable to find an alternate route, the complainant returned to his home to advise his employer that he could not make it in. During that discussion, the complainant’s employment was terminated.

A three member panel of the Tribunal found the complainant had established a prima facie case of discrimination. The Tribunal explained that the timing of the termination, which had occurred after the complainant’s return from medical leave and after a younger, stronger employee had been hired, gave rise to a reasonable inference that age and disability were at least factors considered in the dismissal. Further, the Tribunal rejected the employer’s attempts to establish non-discriminatory reasons for the dismissal.

This case highlights the need for employers and supervisors to refrain from comparing employees’ skills and abilities, even in casual conversation, especially when the comparison is based on grounds which could form the basis of a complaint under the Human Rights Code. The Tribunal was clearly influenced by the fact that the employer had made positive remarks about the younger, stronger employee to the complainant, although no express comparison was made.

Flores v. Duso Enterprises and Duso (No. 2), 2008 BCHRT 368