Democracy Gone Astray

Democracy, being a human construct, needs to be thought of as directionality rather than an object. As such, to understand it requires not so much a description of existing structures and/or other related phenomena but a declaration of intentionality.
This blog aims at creating labeled lists of published infringements of such intentionality, of points in time where democracy strays from its intended directionality. In addition to outright infringements, this blog also collects important contemporary information and/or discussions that impact our socio-political landscape.

All the posts here were published in the electronic media – main-stream as well as fringe, and maintain links to the original texts.

[NOTE: Due to changes I haven't caught on time in the blogging software, all of the 'Original Article' links were nullified between September 11, 2012 and December 11, 2012. My apologies.]

Friday, July 13, 2012

Forcing man, 65, to retire discriminatory, court says

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.

Related: Layoff clause protecting older workers ruled discriminatory

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.

Original Article
Source: money ville
Author: Sheryl Smolkin

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