A 67 year old Alberta government employee has been rehired and awarded back pay after a tribunal ruled she experienced age discrimination when her employment contract was not renewed.
In a December 2012 ruling the Alberta Human Rights Tribunal found that Joan Cowling was not seriously considered for a new contract as a labour relations officer when her contract expired. This was even though previous performance reviews had been positive.
Cowling was hired on contract by the province in 1999 as a Labour Relations Officer when she was 59. The contract was renewed in two and three year increments, ending in May 2007.
The years 2003 and 2004 were difficult years for her. Her husband became ill and died of cancer. During that period she asked to take some of the 54 days of sick leave she had accrued to take care of her husband. Her request was declined.
When her contract was up for renewal in 2003, she tried to negotiate a typical three-year contract as she was the sole wage earner and needed the income security. The renewal was limited to two years at the same pay and she lost all of her sick leave from previous years. In 2005, her contract was renewed for a final two years.
Throughout her eight years of employment with the Alberta government Cowling received good performance reviews and bonuses tied to performance every year.
Her supervisor gave her an excellent written reference when she left.
Prior to the expiry of her last contract in 2007, Cowling was advised by her supervisor that Alberta planned to restructure the Mediation Services Branch and her position had been downgraded. He said the purpose of the restructuring was to replace her position with a permanent “growth” or “developmental” position.
A competition was held for the new job and she applied. Cowling discovered that the duties and responsibilities of the new job were virtually identical to those of her old one. Nevertheless, she wasn’t hired.
In fact the ‘new’ position was never filled and the job description was later upgraded to “labour relations advisor,” which again was similar to Cowling’s previous job description.
In May 2008, Cowling filed a discrimination complaint based on age with the Alberta Human Rights Commission.
In her December 2012 ruling, Tribunal Chair Shirley Heafey reinstated Cowling to a one year renewable contract with Alberta Employment and Immigration (now the Department of Human Services). She also awarded her general damages of $15,000 plus five years of back wages (discounted by 30 per cent because she was a contract employee.)
Heafey found that the restructuring specifically targeted Cowling’s continued employment due to her age. By using language like “growth” or “developmental” position and seeking a person who could stay in the position five or 10 years, she was excluded from consideration at age 67, in spite of her qualifications.
Cowling tried to mitigate her damages by applying to several positions with the Alberta government, but no other job offers were forthcoming.
The Tribunal Chair said reinstatement was appropriate in these circumstances because neither Cowling nor witnesses for the province seemed to harbour any bad feelings towards each other. Furthermore, there was an appropriate open position in Mediation Services.
Heafey also referred to a provincial study entitled, “Engaging the Mature Worker,” that showed it was Alberta government policy not to squeeze out older workers and lose valuable mentors who possess “corporate memory.”
As a result, in December 2012 she ordered the province to reinstate Cowling, now 72, to a one year contract to a similar position she left in 2007. The employer will be able to re-consider the need for her services at the end of a year, but her age cannot be a factor.
Heafey also awarded Cowling $15,000 in general damages and left it to counsel to agree upon the exact dollar value of 5 years pay minus 30 per cent plus interest and costs. However, she retained jurisdiction if the lawyers could not agree.
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