In January, 2001, the owners of the Haida Harbourside Inn implemented a mandatory retirement policy requiring all employees to retire upon reaching age 65. The policy was to take effect July 23, 2001.
As a result of the policy, two long serving employees were forced to retire. Both employees filed grievances under the collective agreement.
Arbitrator Kelleher concluded that the implementation of a mandatory retirement policy was a normal right of management, in the absence of a prohibition in a collective agreement. Such policies do not violate the British Columbia Human Rights Code.
However, the collective agreement between the Inn and the union contained a “Human Rights” clause which prohibited discrimination in:
“wage rates, training, up-grading, promotion, transfer, layoff, recall, discipline, classification, discharge or otherwise by reason of age …” [emphasis added]
As the clause did not expressly mention discrimination based on mandatory retirement, the issue was whether the words “or otherwise” could be interpreted as prohibiting mandatory retirement.
After reviewing two prior arbitration awards, Arbitrator Kelleher concluded that the use of the words “or otherwise” in the clause was sufficiently broad to encompass retirement. On this basis, he concluded that the mandatory retirement policy violated the collective agreement.
As a result, the employer was ordered to reinstate both employees, with compensation for lost wages, if and when the employees were fit to return to work.
This case serves as a reminder that, prior to implementing new policies in the workplace, employers should ensure that such policies are consistent with collective agreement obligations. It also confirms the importance of negotiating precise contract language which minimizes the risk of overly broad interpretation.
Haida Harbourside Inn v. British Columbia Government and Service Employees’ Union, [2003] BCCAAA No. 257, SGM/2003-081.
(click here for full text of the judgment)