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Civil Litigation, Employment & Labour

Gen-Xers bearing the brunt of downsizing

Toronto civil litigator lawyer Kevin Fisher says he would like to see an age discrimination claim mounted by one of the growing band of successful employees fired without cause in their 40s and 50s.

Fisher, a partner with Gardiner Roberts LLP, tells that he has seen a rash of cases involving early Generation X-ers turfed out of sales management and investment advisor roles despite apparently thriving in their posts.  

“When a business wants to cut its headcount, it’s predominantly employees in that age group that are terminated, and it doesn’t make much sense to me. Over and over again I see these people in their late 40s or early 50s fired after having their best year,” Fisher says. “You need someone with the gumption to take it as an age discrimination claim and prove it. I would love to see someone do that, but none of my clients has been in a strong enough position to test the case.”

Fisher says companies may view employees in that age bracket as the most expendable because they lack the experience and seniority of older workers, while taking home generally higher wages than their younger, less-seasoned counterparts. 

“It may be encouraging to millennials, but it’s got to be discouraging to many people who have worked for decades and find themselves out even though they’re doing the job effectively,” he says. “You see banks panicking that technology is going to take away their business, but if they fire the people who maintain and cultivate business relationships, how do they think they’re going to survive?"

Fisher says that such an approach is “short-sighted” because, in the long run, it widens the knowledge gap between those at the top of the company and the rest of the workforce, potentially upsetting internal succession planning.   

“It may work on a short-term cycle, but it’s not in the best interests of the company looking further down the line,” he says. “You lose institutional knowledge, and end up reinventing the wheel because nobody understands how things are done anymore.”  

In his experience, Fisher says many of the fired workers receive generous packages, but some turn to the court if they feel they’ve been short-changed.

For example, in one recent case, a Superior Court judge awarded a man in his 50s punitive damages of $50,000 in addition to reasonable notice compensation following his dismissal. The judge found the employer’s allegation of cause against him was made in bad faith as part of the company’s negotiation strategy to reduce the payoff to one of its top salespeople. 

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