How to handle a delicate situation

QUESTION: I have an employee in the office of my small business who has worked for the company for about nine years. She just turned 69. She is a great person, but, unfortunately, over the last 10 months or so her error rate has skyrocketed. It is not because she does not care because I know she does. I have, as kindly as possible, pointed out the increasing number of errors and have tried to figure out with her what we can do to reduce them. Nothing has worked. These errors are starting to hurt the business. What do I do?

ANSWER: I will start with what you should not do. You should never bring up the issue of age or retirement. If she brings up the possibility of retirement you can talk to her about it. If she brings up her age, you should not be responsive. As much as you consider her part of the team, it is simply prudent and smart to protect yourself from any suggestion of discrimination on the basis of age.

You should start to document these performance issues. If you have a conversation with her about the issue, make a note in her personnel file.

If appropriate, you should give her a note or an email outlining the issues and your concerns.

If you strongly suspect that there is a medical issue at play, you could suggest that she talk to her doctor to see if anything can be done. I will tell you that that is the human advice, not necessarily the most prudent advice. The danger is that if it does turn out to be a medical issue and not just the consequences of aging, and you terminate her, it could be claimed that you discriminated based on a disability you knew about or suspected.

Many lawyers would tell you that unless she brings up the possibility of a medical issue you should not raise it. You cannot be held to have discriminated based on a medical disability of which you were unaware.

It’s your conscience, you must decide.

The memos to file and notes about the performance issues do not need to end with stern warnings about her job being in danger. I’m advising you to create them just in case you are ever accused of terminating based on age. You will be able to argue that it had nothing to do with age but rather legitimate performance issues.

You are still going to have to provide her a package if this does end up with a termination. It would be extremely unlikely that any judge would find innocent errors from a well-intentioned employee would constitute just cause and justify terminating her without a severance package.

If you do end up having to terminate this relationship, do it as humanely as possible. Make it clear that she and her contribution have been valued. You are not required by law to give a reason. If you have done your job and discussed with her the error rate she will figure it out anyway. No need to make her feel worse by bringing it up.

Offer her the opportunity to cease working on her own schedule, within reason, so that she can say goodbye to her colleagues and leave with her head held high. Offer her the opportunity to characterize her departure however she wishes. If she wants to tell the rest of the staff she decided to retire, let her and stick to that story.

Treating her humanely is not only the right thing to do, it will hopefully leave her less angry and litigious than she otherwise might have been. If you offer her a reasonable severance package, it will more likely be accepted than contested if you have handled the termination process with compassion and sensitivity.

Ed Canning practises labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. You can email him at ecanning@rossmcbride.com