Mandatory retirement against human rights law
The University of Prince Edward Island was recently ordered to reinstate three employees who were forced to retire under a mandatory retirement policy that was found in contravention of the Human Rights Act. Mandatory retirement was once common in Canadian universities, but it has been largely phased out through a combination of provincial legislation and university amendments to their own retirement provisions. UPEI was one of the last institutions to have such a policy.
Psychology professor Thomy Nillson, sociology professor Richard Willis and receiving clerk Yogi Fell will be returning to work complete with back pay minus retirement benefits already paid out. The UPEI Human Rights Commission ruled in favour of the three employees, who were forced to retire between 2005 and 2007, back in February but only recently issued orders for the university to reinstate them. The university must also “Refrain in the future from committing the same or similar contravention, namely,
mandatory retirement.”
University officials are not pleased with the order and estimate that compliance will cost more than $1 million in addition to $325,000 required to respect the order on an annual basis. “For comparison purposes, this is double the increase to our government operating grant for Main Campus in 2010-11,” Gary Bradshaw, vice-president finance, said in a statement. Bradshaw further warned that “Restrictions on hiring and on discretionary expenditures are anticipated.” UPEI is also on the hook for $52,000 in legal costs that the UPEI Faculty Association incurred in arguing the case.
The university maintains that their mandatory retirement policy was justified under a provision of the Human Rights Act that states that prohibitions against age based restrictions “do not affect the operation of any genuine retirement or pension plan.” The university has also cited a 1990 Supreme Court of Canada ruling that concluded mandatory retirement policies were exempt when there exists a “genuine retirement or pension plan.”
The Human Rights Commission disagreed with those arguments, concluding that the university ” had failed to establish that the discrimination was justified.” UPEI is appealing the decision to the Supreme Court of Prince Edward Island.
The Faculty Association is satisfied with the result and in its own statement said it would provide a check on the university to ensure it respects the rights of the reinstated employees. “Moving forward, the Association will work to ensure that the collective agreement rights of those being reinstated, of the departments involved, and of other members in those departments are all respected,” the statement read.
The association also expressed concerns over the university’s response. “It is unfortunate, though, that the Vice-President’s memo also seems to threaten the entire University community in response to the Commission’s Decision and Order . . . This is especially concerning given that we are now in negotiations.”