Employers looking to retain older workers amid retirement exodus

With baby boomers putting off their retirement, Canada has been able to avoid the worst effects of an aging population on the labour market.

However, a recent report by TD Economics claims that the country’s luck might be about to run out.

“By 2025, we expect to see the number of people 65 and older grow by one-million,” James Orlando, a director at TD Economics, said in the report.

“Based on current participation rates, that means nearly 900-thousand workers will leave their jobs in the next three years.”

Orlando adds that employers are already having problems finding a proper replacement for older workers.

“With so many older workers having to be replaced by younger ones, firms could face a deficit in experience and institutional knowledge. Both employees and employers will be navigating a learning curve.”

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Retaining top talent

To combat labour shortages caused by the so-called “Grey Resignation”, a growing number of governments and businesses are enticing older employees to keep working or leave retirement and rejoin the workforce.

The Financial Post reports that the U.K. government is deploying a “network of ’50-plus champions’ to persuade businesses of the advantages of hiring older workers.”

Rather than focusing on finding new blood to replace the older guard, some employers are offering staff that are considering retirement, or have retired, a variety of benefits, including:

• Flexible work schedules
• Increased support for health conditions
• Career progression opportunities

If you are thinking of leaving retirement to return to workforce as a non-unionized employee in Canada, here are a few things you need to be aware of.

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Will my pension be reduced if I return to the workforce?

While each pension plan in Canada has specific terms governing payments during retirement, it’s very unlikely that you would receive less money if you chose to rejoin the workforce.

This includes non-unionized individuals who accepted a full-time, part-time, or hourly position in Ontario, Alberta, and B.C.

However, before signing an employment contract and leaving retirement, you should speak with your pension plan administrator as well as an experienced employment lawyer at Samfiru Tumarkin LLP.

WATCH: Employment lawyer Lior Samfiru explains the five things workers need to know about employment contracts on an episode of the Employment Law Show.

In Canada, employers can’t legally force non-unionized workers to accept a new agreement immediately or a few days after receiving it.

Employment contracts often take away key protections that would otherwise be available to you.

Companies might attempt to limit your severance package to a few weeks’ pay, or add a clause that gives them the ability to make significant changes to your job.

We can review the agreement and make sure your rights are properly protected before you rejoin the workforce.

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If I leave retirement to help my former employer, what happens to my length of service?

If you resume your old job shortly after retiring, there is no guarantee that your previous years of service will be recognized by your employer — unless it’s been included in your new employment contract.

As a result, if you are fired or let go shortly after coming out of retirement, you might not be owed the same amount of severance pay that you would have received before you retired.

In some provinces, such as Ontario, employment standards legislation doesn’t take “breaks in service” into account when determining minimum severance entitlements.

• Example: You worked at a manufacturing company in Ottawa for 20 years. Shortly after retiring, your boss tells you that the business needs your help and asks you to resume your old job. After working for another two years, your employer fires you. Under Ontario’s Employment Standards Act, 2000 (ESA), you would be entitled to 22 weeks of severance pay.

Courts in Canada, on the other hand, usually take a holistic and practical approach when it comes to determining full severance pay. It’s very likely that your previous years of service will be considered.

To avoid running into any issues regarding your severance entitlements, hold off on signing a new employment contract before seeking legal counsel.

Some employers add a clause to their agreements that allows them to ignore a non-unionized worker’s previous years of service — even if they recently retired.

An experienced employment lawyer at Samfiru Tumarkin LLP can review the contract and ensure it contains the proper clause to protect your seniority.

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Can my employer make changes to my job if I leave retirement to resume my old role?

Unless you signed an employment contract that allows your employer to modify the duties and responsibilities of your old job, the company can’t legally force you to accept proposed changes.

In Canada, non-unionized employees can refuse significant adjustments to the terms of their employment, such as a demotion or reduction in pay. These types of modifications are illegal.

When major changes are made to your job without your consent, and your employment contract doesn’t give your boss the right to do so, it’s very likely you can treat this as a constructive dismissal.

In this situation, the law allows you to resign and pursue full severance, which can be as much as 24 months’ pay.

However, you shouldn’t quit your job before Samfiru Tumarkin LLP confirms that you have been constructively dismissed.

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My employer is pressuring me to retire again, what should I do?

Your employer can’t pressure or force you to retire — even if you have already retired in the past.

It’s illegal for non-unionized employees in Canada to be discriminated against based on protected aspects, including:

• Age
• Race
• Gender
• Religion

If your boss is pressuring you to retire again, document their attempts. Keep any letters, emails, or text messages that show how the company is influencing you to step down.

In this situation, it’s very likely that you would have grounds for a constructive dismissal claim as well as a human rights complaint.

An experienced employment lawyer at Samfiru Tumarkin LLP can inform you of your legal options and help you secure the compensation you deserve.

Filing a human rights complaint

In addition to a constructive dismissal claim, non-unionized employees in Canada can file a human rights complaint if they experience discrimination at work.

The Human Rights Tribunal of Ontario, Alberta Human Rights Commission, and B.C. Human Rights Tribunal, are examples of organizations that are responsible for dealing with complaints pertaining to their province’s human rights legislation.

Successful human rights complaints can result in compensation for the individual who experienced discrimination.

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Can my employer fire me for refusing to retire?

The short answer is no. Firing a non-unionized employee in Canada for refusing to retire is discriminatory and violates their human rights.

Employers can let staff go for any reason, as long as:

• They are provided full severance pay
• The reasons for their dismissal aren’t discriminatory

This is known as a termination without cause. If one or both of these conditions aren’t met, you have been wrongfully dismissed and should take legal action.

It’s also illegal for your boss to fire you for just cause in this situation, which would mean no severance package or access to Employment Insurance (EI) benefits.

This punishment is reserved for the worst kinds of workplace transgressions, such as blatant disobedience, theft, or violence.

Not only does the company have to prove progressive disciplinary measures were applied, but that a lesser penalty wouldn’t be acceptable, which is very hard to do.

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Lost your job? Speak with an employment lawyer

If you are fired or let go for any reason, or believe your human rights have been violated, contact the experienced employment law team at Samfiru Tumarkin LLP.

Our lawyers in Ontario, Alberta, and B.C. have helped tens of thousands of non-unionized individuals resolve their workplace issues.

We can review your situation, enforce your rights, and ensure that you receive the compensation you are legally entitled to.