COMPULSORY RETIREMENT Is it really necessary?
Presented by Dahn A. Batchelor to the Ministry of Labour in Ontario in 2002
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I can remember the days when I was in my forties and was refused jobs because the prospective employers stated that due to pension policies, they weren’t hiring anyone over 39 years of age. Fortunately, those days are behind us. Some companies however are still refusing to hire anyone over 65 because they feel that anyone over that age is more likely to quit and permanently retire in a year or so.

I have yet to hear of any company refusing to hire anyone over 65 on the basis that such seniors are unable to do the work because of their inability to grasp the complexities of their occupation, work that they have been doing competently for years.

Fortunately for myself, as a senior, I am not faced with this problem of being too old to work as I am self-employed and have been for the last fifteen years. I began practicing law in January 1964. I have conducted thousands of trials. In 1975, the Secretary General of the United Nations accepted the nomination by the Solicitor General of Canada for me to be one of Canada’s active participants in United Nations crime conferences as a criminologist and advisor to the UN on criminal justice. I have addressed United Nations crime conferences nineteen times in South America, Europe and Africa.

Next month, I will be seventy-one years of age and I have just recently been advised by the UN, that next month, I am being formally invited to address a UN crime conference in Bangkok, Thailand in April of next year. I will be speaking on the subject of international terrorism and my paper is to be published under the auspices of the United Nations and will be made available by the U.N. to 150 member countries for their perusal prior to my speech.

Anyone who thinks I am too old to work, is a fool. Anyone who thinks that Justice Ferguson who did the police study for the Toronto Police Service at the age of eighty-two is too old to work at his age, is a damn fool. Anyone who thinks Hazel McCallum, the mayor of Mississauga and who is eighty-three, is too old to work, is an incredibly stupid fool. And anyone who thinks Honest Ed who is ninety, is unable to cope with the business aspect of his enterprises, should, without a doubt, be institutionalized for being an idiot beyond any hope of recovery.

There is an old saying that no-one should ever forget. It pertains to our minds. “Use it or lose it.” Most human beings when given the opportunity to continue using their minds to their fullest capacity, do so and the number of people who do this when they are in their seventies, eighties and nineties is enormous.

There is no justifiable reason why any employer should dismiss an employee who is capable of doing his or her work simply on the basis that that person has turned sixty-five.

I can assure you that by the time most people reach sixty-five years of age, if they have been working in a particular field of endeavor in sales or office or administrative work for many years, they are in a prime condition to continue in their work. To discard such people is foolishness.

It’s not likely that anyone can honestly justify dismissing a competent sixty-five year-old employee from his or her job simply on the premise that, that person has turned sixty-five.

I don’t intend to belabour this aspect of this issue because I know that to do so is akin to preaching to the choir.

Notwithstanding the foregoing, I still have some concerns however about people working past sixty-five when their work is that of a labourer. Admittedly, there are some very strong individuals, who at seventy, can give twenty-year-olds a run for their money. Over the years, they have built up their muscles and their muscles are still firm enough to do heavy work. A close friend of mine is seventy-nine years old and he still lifts weights and teaches weightlifting every day to weightlifters and body builders in his gym.

But alas, there are more men, such as myself who had hour-glass figures when we were younger, and have sadly watched the sand shifting in the wrong places over the years. I remember when I was in my twenties, lifting hundred pound sacks over my shoulders. I can still do that but the idea of being buried this far from home doesn’t appeal to me very much.

It saddens me to think of a sixty-five-year-old man who works as a labourer, being told that he is too old to do the work any more. I can envision the tears in his eyes as he tries to explain that he can lift the boxes or sacks if he is just given a little more time to do it.

But at the same time, I can sympathize with the employer who has patiently watched over the years, his long-time employee, struggling with those boxes and sacks and knowing all along, that the work can be done much easier and faster by the young men who had applied for the job.

I don’t envy such employers. Firing a long-time and faithful employee because he can no longer to the heavy labour, must really be painful to decent employers who are concerned about the welfare of their employees.

These sixty-five-year-olds should be given alternative work within the firm if it is at all possible. The employer should begin training the older employee in the area of work he may wish to put him into when he turns sixty-five.

Of course, this may be possible with big firms but in smaller firms, this may not be possible at all. It is conceivable that when the employee turns sixty-five years old, there is simply nothing else in the company that he can be assigned to do. And that being as it is, the employer has no other choice but to fire his faithful long-time employee when he turns sixty-five.

Perhaps what we need is mandatory employee pension plans so that when a sixty-five-year-old employee retires at that age, he will reap those benefits and not suffer the financial consequences that follow when one becomes unemployed.

To make such a plan work, it should be set up in such a manner that the older the employee is when he starts working for a firm, the more he will pay into the plan so that when he retires, he will reap the full benefits of the plan. The plan should follow him, wherever he works.

Based on the fore mentioned, I think our government should seriously consider implementing a compulsory retirement age limit, as well as a compulsory saving of retirement benefits for the employees when they reach the retirement age.

What should be done with police officers, firemen and paramedics who reach the age of sixty-five? Many of them are quite capable of working past sixty-five. But if the work is too physically strenuous for them, they should be given an opportunity to work in office or administrative work if they have the capabilities of doing it.

The scenario of a paramedic at sixty-seven years of age being unable to help his partner lift a patient into an ambulance is frightening. The scenario of a fireman of the same age not being able to climb fifty floors is equally frightening. The scenario of a police officer of the same age needing to be rescued by fellow officers because he cannot wrestle down a small teenage criminal doesn’t look any better. These situations must not be allowed to happen. But sometimes they do occur.

Obviously, special circumstances require special remedies and if an employee of one of these professions is unable to cope with the physical aspects of his job, he has to retire if he can’t find a less strenuous job within the service that employs him.

The question that must be answered is, “Is the firing of an employee at the age of sixty-five, contrary to the employee’s human rights?” I don’t think there is one answer. One has to consider many factors before arriving at any conclusion to this very perplexing question. Forcing sixty-five-year-old employees to quit before they are ready, would allow some businesses the opportunity to axe older staff free of wrongful dismissal claims and discrimination laws.

It is difficult to reconcile a mandatory or justified retirement age with the concept of age discrimination. By its very nature, such a measure ignores individual capability.

A recent example of this is the enforced retirement of 1,000 unionized Bell Telephone employees, many who have reached sixty years of age, as a cost-cutting exercise. No doubt, these employees, many who have worked for Bell for thirty years, are in their prime with respect to their abilities to work in their field. Despite that, they are being forced to take early retirement. Admittedly, they are being given a pension that will represent a portion of their salaries for the last five years but do these people really want to retire at sixty? Some perhaps do but I doubt that the majority do.

In my opinion, the decision on whether to allow businesses to set compulsory retirement ages will have a profound negative effect on the workforce.

Perhaps our government should set a retirement age at seventy, when the employee does labour work and seventy-five when the employee works in sales or in an office or works in administration where employers will then be able to retire their employees compulsorily without having to justify their decision.

Making compulsory retirement ages under seventy for laborers and seventy-five for office workers and administrators should be unlawful, except in exceptional circumstances where the employer is able to justify a compulsory retirement age in individual cases.

Quite frankly, I can’t imagine why an employee would want to continue doing heavy labour after the age of seventy or still work in sales or in an office after seventy-five. I would think that they would want to spend as much time as they can in their sunset years, doing something other than simply working for a living. By that time, they have probably saved up a lot of money for their retirement both in savings, RRSPs and a pension.

For the reasons outlined previously in this paper, I believe that we should amend the current upper age limit for bringing a claim for unfair dismissal on the basis of age to legislate an employer's normal retirement age, which would be seventy for labourers and seventy-five for those who work in sales or in offices or as administrators. Exceptions would obviously have to be made with reference to police, fire and ambulance employees working in the field.

I am wondering if such legislation will exclude all people who are employed in a private residence as an employee of the family from the protection of equality legislation? The home as a place of employment is precisely the place where many vulnerable people find employment, including those who come from abroad. We all know that the widespread use of foreign nannies or au pairs who are all too often exploited by their employers are workers who seem to be those most blatantly discriminated against. That being as it is, how do we protect them from wrongful dismissal because of age before they reach the legislative retirement age?

We must also be mindful when considering this issue of mandatory retirement about the dilemma facing young persons just out of school.If we raise the age of mandatory retirement, which means employees stay longer with their companies, there may not be as many openings for the young people who want to fill the vacancies because there will not be any vacancies to fill until the seniors turn seventy or seventy-five and retire.I don’t have statistics to offer that might support my concern on that issue so my concern may be academic.

This issue is a complex issue, of that, there can be no doubt. We have to balance the rights of seniors against the needs of the young.

Let me quote from a very pertinent statement made by Senator Feargall Quinn of the Irish Senate. He said in part;

“Making compulsory retirement illegal would be a measure with considerable benefits with almost no cost at all. At a personal level, no one would be forced to work beyond whatever was the normal retirement age for their occupation. At a business level, no one would be forced to go on employing a person who was incapable of doing their job. Such a change would be a huge boon to people who would prefer to go on working. In most cases there would be a clear benefit to the companies for which they work. To the wider community, the benefits of having someone continue to be economically active are too obvious to need spelling out.” unquote

I welcome this move on the part of the government of Ontario to update our equality legislation with respect to compulsory retirement. What we do at this time at the beginning of our new century will have an effect on the lives of millions upon millions of employees in Ontario in the future and it will surely benefit them all.

I am beyond the age where it will have a direct effect on my life but my two children are not and neither are their children nor are any other children in our province.

Needless to say, I am pleased to have been given the opportunity to speak before this august group and express my views on the issue of compulsory retirement.

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A year after I presented my paper to the Ministry of Labour, the province of Ontario
made it illegal to fire someone once they reached the age of 65 unless there was evidence that the employee was unable to continue working in a satisfactory manner.