Employer’s Conduct Constitutes a Repudiation of the Employment Contract thereby Disentitling it from Relying on the Without Cause Termination Provision
In a recent decision of the Ontario Superior Court of Justice (May 2021), Humphrey v. Mene,…
The Applicant, Peter Reiss was an experienced lawyer with a career spanning 30 years. He applied at the age of 60 for the position of commercial legal writer with CCH Canadian Limited (the “Company”). He was not chosen as a candidate for testing nor was he considered for an interview. He brought an Application against the Company alleging age discrimination.
The Company claimed that they could not have possibly discriminated against him on the basis of age because they didn’t know how old he was. The adjudicator noted that while the applicant did not provide an exact age on his Curriculum Vitae, he did state that he was called to the bar in 1979 and based on this information alone, it would have been reasonable to assume that Reiss had to have been at least in his late 50’s.
The evidence showed that Reiss was equally as qualified for the position as the two other candidates however there were 3 individuals involved in the recruitment process: Ms. Mason, Ms. Wong and Mr. Schon. Ms. Mason was the primary decision maker and questioned why Reiss had omitted important information on his Curriculum Vitae raising questions in her mind about the suitability of Reiss for the position. Reiss was not forthcoming about information concerning his employment experience, why he was interested in making such a big change in his career, and why he had applied for a position that he seemed over-qualified for after his many years of experience in a senior level legal position. For these reasons Ms. Mason sent an email to Mr. Schon who had been hired as a consultant to assist the Company in filling the position, stating her concerns and suggesting the application be put on hold.
When Reiss subsequently enquired a day later about the possibility of an interview, he received a reply by email from Mr. Schon that read as follows:
“I don’t have all the feedback on everyone yet, individually, but it is looking like they are moving toward candidates that are more junior in their experience and salary expectation.”
As a result of this email, Reiss was upset about not being considered for the job, thought he had been rejected as a result of his age and did not follow up. If Reiss had followed up, he may well have received an interview since it was Ms. Mason’s direction to in fact put his application on hold.
Reiss was unable to prove age discrimination in this case since he did not establish that it was more probable than not that his age was a factor in Ms. Mason’s decision making. The evidence was that Ms. Mason questioned whether he would be a suitable candidate. Ms. Mason’s concerns about Reiss’ “over-qualification” was not related to his age but rather unanswered questions such as why he wanted to make such a major career change. Reiss was therefore not entitled to any monetary compensation for loss of earnings.
The Tribunal did find however that the email communication made by Mr. Schon to Reiss was tainted by age discrimination and had an adverse effect on Reiss. Reiss was awarded $5,000.00 as compensation for injury to his dignity, feelings and self-respect as a result of age discrimination because of receiving incorrect information from Mr. Schon about the status of his job application which in turn deprived him of the opportunity of following up with the Company regarding his job application.: