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July 12, 2012
After 34 years as a reporter for the St. John Telegraph Journal in New Brunswick, Khalid Mallik was forced to retire in March 2008 when he turned 65. The Journal’s parent company Brunswick News Inc., took the position that Mallik had reached normal retirement age and consistently failed to meet performance standards.
So, the company fired him using a clause in the collective agreement which appeared to authorize the dismissal. He received a special severance package of 52 weeks pay worth $48,009 as required by the agreement.
A year later, Mallik filed an age discrimination complaint with the New Brunswick Human Rights Commission. The Commission investigated and dismissed his claim because they were convinced that it was his history of poor performance and not his age which led to the decision to fire him. Mallik didn’t accept that decision and applied to the Court of Queen’s Bench for an order to quash the dismissal and tell the Human Rights Commission to appoint a Board of Inquiry to hear his case.
Mr. Justice McLellan decided that there was no performance-related issues that had led to Mallik’s firing. He was going about his work as he always had and although there were four written warnings over a three-year period, they were not serious enough to justify a suspension, let alone a firing.
The judge found that Article 11.04(4) of the collective agreement is discriminatory because it creates a reason for firing people based only on the fact that they are over 65.
Justice McLellan also said that under the guise of this provision, the newspaper violated the New Brunswick Human Rights Act and the Charter of Rights and Freedoms. He found the Commission’s decision to dismiss the complaint was unreasonable and sent it back for further investigation.
That’s where it sits now. Mallik doesn’t have his job back, but has another chance to seek an award for damages for age discrimination in addition to the severance package he already received.
This case does not mean that employees over 65 are “fireproof.” What it does mean is that in order to fire a worker who is performing poorly at any age, an employer must meet the same documented standard of proof. Otherwise, a court will be prepared to look beyond the stated reasons for dismissal and may determine that the actual basis for termination of the older worker is age discrimination.
Related: Older employees can protect themselves by making age an issue