View cases - Stewart McKelvey

Page: 65[247] Another traditional justification for mandatory retirement is that the existence of a fixedmandatory retirement age allows employers to plan for employee turn-over, and frees up positionsfor younger workers. It avoids the need for close and potentially demeaning performancemonitoring for employees whose productivity may have declined with age. It also imposes a cap onthe number of years in which an older employee’s pay can exceed his or her productivity, therebyencouraging more efficient agreements.2011 FC 120 (CanLII)[248] Dr. Kesselman says that there are three flaws in the traditional justification for mandatoryretirement.[249] The first flaw is that it assumes that agreements allowing for mandatory retirement areconsensual arrangements between contracting parties. Dr. Kesselman says that in actual fact, mostmandatory retirement provisions have their source in collective agreements rather than individualemployment contracts. This allows the will of the majority to trump the equality rights of individualemployees who may need or want to continue working after the mandatory age of retirement.[250] Dr. Kesselman’s thesis is borne out by the facts of this case. That is, 25% of Air Canadapilots supported the abolition of mandatory retirement in the referendum carried out by ACPAshortly before the Tribunal hearing. Nevertheless, the mandatory retirement provision was retainedin the Air Canada/ACPA collective agreement in accordance with the wishes of the majority.