1 The claimant was employed by the respondent company as an area manager. His employment was terminated on 18 June 2025, approximately three months after he attained the statutory retirement age of 63 years, without notice or payment in lieu thereof.

2 In the present action, the claimant brought two claims against the respondent: first, for wrongful dismissal seeking $11,600 in damages, equivalent to approximately two months of his basic salary; and second, for an employment assistance payment (“EAP”) of $14,750 under the Retirement and Re-employment Act 1993 (2020 Rev Ed) (“RRA”). The prescribed claim limit applicable to the claimant for present purposes was $30,000, in accordance with regulation 17(2) of the Employment Claims Regulations 2017.

3 The respondent disputed both claims. For the first claim, it contended that the termination was lawful on the basis that it was “retiring” the claimant, and that no notice or salary in lieu of notice was required in such circumstances. As for the second claim, the respondent maintained that it had discharged its statutory obligation under the RRA by offering re-employment to the claimant, save that such offer was rejected by the claimant. It therefore submitted that it was not required to make an EAP in the alternative.

4 This dispute therefore raised two questions. The first concerns the manner in which an employer may bring the employment to an end once the employee has reached the statutory retirement age, and whether this ordinarily requires termination by notice or salary in lieu of notice under the Employment Act 1968 (“EA”). The second concerns the employer’s duty to offer re-employment, or in the alternative, to make an EAP under the RRA.

5 Having heard the parties and considered the evidence and submissions, I allowed both claims in full. I explained to the parties the brief reasons for my decision ex tempore. I now set out the full grounds of my decision.

6 It was common ground that the respondent purported to terminate the employment contract with the claimant on 18 June 2025 on the basis that he had attained the retirement age. This was done by a letter issued to the claimant that day (the “Notice of Termination”), where the respondent informed the claimant that it would “process your retirement on 18 June 2025 as [his] last working day, and [his] retirement [would] take effect from 19 June 2025”.

7 The respondent further stated that it could terminate the employment without giving the two months’ notice or salary in lieu otherwise provided under the employment contract, given that “[t]his retirement marks the natural end of [the] employment”.

8 The claimant contended that the respondent has wrongfully terminated the contract, and claims damages in the sum equivalent to two months’ salary in lieu of notice, which has been quantified as $11,600.

9 In my judgment, the respondent had repudiated the employment contract. If the respondent wanted to bring the employment contract to an end after the claimant attained the statutory retirement age, it could have done so by exercising its power to terminate the employment contract lawfully by giving the claimant two months’ notice or salary in lieu, as provided under the express terms of the contract and sections 10 and 11 of the EA. But this power was not exercised.

10 Instead, it was clear from the Notice of Termination that the respondent operated under the assumption that it could bring the employment contract to an immediate end any time after the claimant attained the statutory retirement age. The respondent was mistaken in that assumption. No such power exists—whether under contract, statute, or the general law. Hence, by issuing the Notice of Termination, the respondent had effectively renounced the performance of its obligations under the employment contract and was therefore in repudiatory breach of contract.

11  Section 16 of the EA implies an agreed damages provision into employment contracts. It provides that a party in repudiatory breach of the employment contract is liable to pay to the innocent party a sum equal to the amount that the defaulting party would have been liable to pay under section 11 had the defaulting party terminated the contract without notice. That sum is the salary in lieu of notice.

12 Indeed, the sum equivalent to the salary in lieu of notice would have been the ordinary measure of damages that would be awarded to the employee in an action of wrongful dismissal, as it represents the employee’s loss of wages had the employer duly performed its obligations under the contract but exercised its power to terminate the contract by giving notice or paying salary in lieu thereof: see Aldabe Fermin v Standard Chartered Bank [2010] 3 SLR 722 at [89].

13 At the time his employment ended, his gross monthly wages were $6,428. His claim, however, sought only $11,600—equivalent to $5,800 per month, a sum less than the gross rate of pay that would otherwise have accrued to him over the notice period. As the claim fell within what the claimant was properly entitled to recover, I allowed it in full.

14 I turn next to the claim for the EAP.

15 I begin first with setting out the statutory scheme relating to the payment of an EAP before considering its application to the facts of the present case.

16 The payment of an EAP to an employee should be understood as one of two alternatives that an employer may take to discharge its re-employment obligations to that employee.

17 An employer is generally required to offer re-employment to eligible employees who have attained the statutory retirement age— which stood at 63 at the material time and has since been raised to 64 with effect from 1 July 2026. This obligation is set out in section 7A(1) of the RRA. Strictly speaking, that section imposes two interrelated statutory obligations on an employer. First, an employer must offer re-employment to an eligible employee before that employee attains the statutory retirement age. Second, an employer must re-employ that employee from the time that the employee attains the retirement age and until that employee attains the prescribed re-employment age—which stood at 68 at the material time and has likewise been raised to 69 with effect from 1 July 2026.

18 However, these re-employment obligations are not absolute. Section 7A(1) is expressly stated to be subject to section 7C, which in turn provides the following:

19 Section 7C(1)(a) is generally understood as setting out the employer’s obligation to pay an EAP to an eligible employee. For instance, paragraph 45 of the Second Schedule to the Employment Claims Act 2016 (“ECA”) lists, as a specified statutory dispute within the jurisdiction of the Employment Claims Tribunal (“ECT”), a dispute relating to an employee’s “entitlement” to an employment assistance payment under section 7C(1) of the RRA.

20 Indeed, this obligation to pay an EAP was introduced by amendments to the RRA as passed in the Retirement Age (Amendment) Act 2011 (No. 4 of 2011), with the explanatory statement for the corresponding bill stating that section 7C “imposes certain obligations on an employer”, including having “to offer an employment assistance payment to the eligible employee for the purpose of assisting him to tide over the period during which the eligible employee attempts to find employment with another employer”.

21 The general idea, therefore, is that if an employer is unable to discharge its re-employment obligations under section 7A, it must pay an EAP to the employee. For completeness, section 7C(1) was thereafter amended by the Retirement and Re-employment Act 2017 to provide for a new alternative if the employer is unable to perform its re-employment obligations—that is, the obligations of the employer (i.e. E1) may also be discharged if the employee accepts an offer of employment by another employer (i.e. E2) while the employee is still employed by E1.

22 However, if an employer offers re-employment in accordance with section 7A, but the offer is refused by the employee, then in making the offer, the employer has discharged its re-employment obligation. In such cases, section 7C(3) applies, stating that “an employer is not required to offer any employment assistance payment to an eligible employee who informs his or her employer of the employee’s decision not to continue to be employed by that employer on or after the date the employee attains the specified age”.

23 In the present case, it was undisputed that a re-employment offer had in fact been made by the respondent to the claimant, but that this offer was rejected. Where parties differed was whether this offer was effective to discharge the respondent’s re-employment obligations in accordance with section 7A.

24 The claimant’s position was that the respondent did not discharge its re-employment obligations to offer re-employment to him, and that therefore it was required to pay him an EAP. However, the respondent’s position was that its offer of re-employment to the claimant had discharged its re-employment obligations, and therefore it was not required to pay any EAP to the claimant. The respondent accepted that it would otherwise be required to pay an EAP if the offer of re-employment it had made was not in accordance with section 7A.

25 The claimant turned 63 years of age in March 2025. However, the respondent had not made any offer of re-employment before then. Rather, discussions regarding re-employment were initiated by the claimant himself when he sent an email to the respondent on 8 June 2025, and it was two days later on 10 June 2025 that the respondent replied with a re-employment offer. That offer had four aspects.

26 First, the claimant was offered to be re-employed as a training executive, which would involve a re-adjustment of his current role as an area manager. According to the respondent, this was because the company was undergoing a restructuring exercise aimed at streamlining the management of its various clusters. This restructuring would result in a reduction in the number of area manager positions, rendering the claimant’s existing role redundant. However, the respondent identified an opportunity for the claimant to be redeployed as a training executive to provide training coordination and administrative support, given the claimant’s prior involvement in training-related work.

27 Second, the claimant’s salary would be adjusted downwards from his gross monthly wages of $6,428 to $4,000.

28 Third, the re-employment period under the offer was for a six-month fixed-term contract from 1 July 2025 to 31 December 2025. On this point, the claimant had queried with the respondent on 13 June 2025 as to why the term was only for six months, citing his understanding that re-employment contracts under the RRA should ordinarily be for a minimum duration of one year.

29 The respondent replied on 16 June 2025, explaining that employers may offer a shorter initial term where there are reasonable grounds, such as pending structural changes or operational reviews. The respondent stated that given the evolving nature of its internal restructuring, the six-month term was intended to allow both parties to review the suitability of the redeployed role, with a view to assessing a possible extension closer to the end of the term.

30 Finally, the respondent required that the claimant decide on whether to accept or reject the offer by 17 June 2025—that is, one week after the date on which the re-employment offer was made.

31 This deadline was a non-negotiable one. After the claimant received the respondent’s clarification on 16 June regarding its reasons for offering a six-month contract term, he requested for additional time until 24 June 2025 to consider the offer, explaining that he was on four days of medical leave. However, the respondent replied the next day, saying: “We regret to inform you that we are unable to extend this deadline further”. The respondent further stated that if no response was received by the end of that day, it would treat the claimant as having chosen not to proceed with the re-employment offer and would proceed with the necessary retirement arrangements.

32 The claimant responded to express his disappointment at the respondent’s refusal to extend the deadline, describing it as “somewhat unempathetic”. He reiterated his view that a six-month re-employment contract appeared inconsistent with the RRA’s requirement for a minimum re-employment term of one year. Later that same day, the claimant wrote again to formally reject the re-employment offer. He explained that the offer was drastically different in scope from his existing role, offered little employment stability, and involved a substantial reduction in salary. He then stated his position that he should instead be eligible for an EAP under the RRA.

33 Consequently, the respondent issued the Notice of Termination the next day, terminating the claimant’s employment with immediate effect and relaying its position that no EAP was payable to the claimant as he had rejected the respondent’s re-employment offer.

34 The claimant advanced three main arguments as to why the respondent should not be regarded as having discharged its re-employment obligations in accordance with section 7A of the RRA.

35 The first reason concerned timing. The respondent did not make any offer of re-employment before the claimant attained 63 years of age in March 2025. An offer was made only on 10 June 2025, and then only after the claimant himself had raised the question of re-employment. Until that point, matters proceeded on a business-as-usual footing: the claimant continued working after reaching the statutory retirement age, and no re-employment contract was put in place.

36 It is correct that section 7A(1) provides that “an employer must, before an [eligible] employee … attains the specified age, offer re-employment to that employee”. That imperative was not observed. Further, paragraph 8 of the Tripartite Guidelines on the Re-Employment of Older Employees (the “Tripartite Guidelines”) recommends that consultations on re-employment should ordinarily commence not less than six months before retirement. In this case, discussions began only some three months after the claimant had reached the retirement age. To its credit, the respondent’s representative (“RR”), who was also at all times the human resources executive liaising with the claimant, candidly accepted that these requirements had been overlooked and expressed regret that the matter had not been addressed earlier.

37 In my judgment, the mere failure to make the offer before the employee attains the statutory retirement age does not, without more, entitle the employee to an EAP. Section 7A(2) provides that, in such circumstances, the existing contract of service is to be treated as continuing. In addition, section 7A(3)(b) deems the employer to have complied with the obligation to offer and provide re-employment for the period between: (a) the employee’s attainment of the retirement age; and (b) the point at which the employer either re-employs the employee or terminates the employment on the ground of ineligibility under section 7A(3)(a).

38 Put shortly, the statute does not treat a delay in making the offer, standing alone, as a breach giving rise to an immediate entitlement to an EAP. Instead, it preserves the continuity of the existing employment and, for the interim period, deems the employer to have complied with its statutory obligation.

39 The second matter concerned the duration of the proposed re-employment. The respondent’s offer was for a term of six months, shorter than the minimum period of one year prescribed by section 7A(6):

40 In my judgment, an offer confined to six months, which had not been accepted by the claimant, did not suffice to discharge the respondent’s re-employment obligations. To be sure, section 7A(6) contemplates that the parties may agree to a shorter term. If the employee consents, the statutory minimum yields to that agreement, and the employer’s re-employment obligations under section 7A are thereby fulfilled.

41 But absent such agreement, the statute fixes one year as the minimum duration which an employer must be prepared to offer. An offer for a shorter period, standing alone and without the employee’s assent, does not meet that requirement. It follows that, in circumstances where the employee declines to accept a term of less than one year, the employer cannot rely on such an offer as constituting compliance with section 7A.

42 The rationale underlying the statutory minimum term of one year is to provide a measure of employment certainty to older employees. That purpose is echoed in the Tripartite Guidelines, which recommend (at paragraph 17) that employers provide greater certainty by offering re-employment for the entire re-employment eligibility period where possible, and in any event for not less than one year, as prescribed by section 7A(6).

43 In these circumstances, it was unnecessary for me to determine whether the respondent’s stated reason for offering a shorter period—namely, to allow both parties to review the suitability of the redeployed role—constituted reasonable grounds. Neither the RRA nor the Tripartite Guidelines support the proposition advanced to the claimant that an employer may offer a shorter initial re-employment term on the basis that it is reasonable to do so. The respondent’s failure to make a re-employment offer that complied with section 7A(6) meant that it did not discharge its statutory obligation to offer re-employment.

44 Finally, the claimant contended that the terms of the proposed re-employment, and the manner in which it was put forward, were unreasonable. Two aspects were relied upon.

45 The first concerned the substantive terms offered, specifically the proposal that the claimant be redeployed from the position of area manager to that of training executive, with a reduction of his gross monthly salary from $6,428 to $4,000—a decrease of approximately 38 per cent.

46 The claimant attributed these adjustments to what he described as a broader and systematic effort to marginalise him within the organisation. He pointed to a series of events: newly recruited area support staff were assigned to other area managers but not to him in September 2024; the number of stores under his supervision was reduced from 14 to 7 in October 2024; and in April 2025 another area manager was promoted to head the operations cluster, and the claimant was excluded from participating in what he characterises as the senior management team.

47 The respondent disputed any suggestion of marginalisation. It maintained that the claimant was never a member of senior management and notes that no documentary evidence had been produced to support that assertion.

48 The respondent accepted that the claimant’s responsibilities as area manager were reduced. It explained, however, that this occurred in the context of a restructuring exercise undertaken between 2023 and 2025, prompted in part by the expansion of the company’s outlets. Area manager roles were redesigned to emphasise digital reporting, multi-outlet coordination and analytics-based decision-making.

49 On the respondent’s account, adjustments were made in accordance with competency alignment. It considered that other area managers were better suited to the redesigned operational requirements, whereas the claimant’s strengths lay in training, having previously facilitated training sessions. As for the reduction in the number of stores under the claimant's supervision, the respondent explained that this change was intended to facilitate a rebalancing of his portfolio towards a greater focus on training functions—for which purpose he had been scheduled to spend 2.5 fixed days per week at the company's headquarters.

50 The proposed redeployment to training executive was thus presented as a role better aligned with the claimant’s strengths and with the company’s operational needs. The respondent described it as a newly created position. The salary of $4,000 was said to reflect market benchmarks for training roles and the non-managerial nature of the post. It was further considered that the claimant lacked the experience necessary for appointment in a managerial position because his experience having been confined to the delivery of training content prepared by others rather than curriculum design or development.

51 In light of my earlier conclusion that the respondent failed to discharge its statutory obligations under section 7A of the RRA, it was strictly unnecessary to determine whether the change of role, the reduction in salary, or the adequacy of consultation were reasonable. Nevertheless, as the issue was raised by the parties, I considered it appropriate to say something brief about the nature and scope of that requirement.

52 Although section 7A does not in terms employ the language of “reasonableness” as a free-standing requirement, the statutory scheme makes clear that the employer’s discharge of its re-employment obligations is attended by such a standard. The requirement is not expressed in a single provision, but it is discernible from the structure of the RRA read as a whole.

53 For instance, section 7A(4) contemplates that the job scope and the terms and conditions of re-employment may differ from those contained in the previous contract of service. That flexibility is, however, qualified by section 7A(5), which requires any such variation to be reasonable and to have regard to relevant factors, including the employee’s productivity, performance, duties and responsibilities, and the applicable wage system.

54 Section 7C(1) reinforces the point. It requires the employer to make “reasonable attempts” to identify a suitable vacancy within its establishment, in accordance with the Tripartite Guidelines. The Tripartite Guidelines elaborate upon what reasonableness entails in practical terms. Two principal facets may be discerned.

55 The first concerns the substantive terms of the re-employment offer. Paragraph 18 of the Tripartite Guidelines encourages both employers and employees to adopt a flexible approach in negotiating re-employment terms and benefits. Consistently with section 7A(5), the Guidelines recognise that employers may, where appropriate, make reasonable adjustments to employment terms, including wages and benefits.

56 Such adjustments may be expected, particularly where the employee previously occupied a larger or more senior role involving leadership responsibilities, or where elements of the employee’s remuneration were seniority-based. Paragraph 19 of the Guidelines recognise that greater adjustments may be warranted in such circumstances, having regard to business requirements and the need for leadership renewal.

57 Re-employment therefore does not carry with it an entitlement to retain indefinitely the same managerial responsibilities or organisational standing. In many organisations, the transition to re-employment may properly involve the assumption of a different, and sometimes less senior, role as responsibilities are assumed by younger colleagues. A change in job scope in that context does not, without more, denote a demotion or reflect adversely upon the employee’s past contribution; it may instead be a natural incident of generational renewal within the workforce.

58 Where there is a corresponding adjustment to job scope upon re-employment, a downward adjustment in wages may ordinarily follow. This reflects the Tripartite Guidelines’ broader objective of encouraging a shift away from seniority-based wage systems towards job-based and performance-based wage systems (at paragraph 20). Employees who previously held more senior roles should therefore expect that seniority-based elements of remuneration may not be preserved upon re-employment.

59 Indeed, paragraph 21 of the Tripartite Guidelines contemplates that even where an employee is retained in the same job, “the wages could be adjusted down to the level of a younger employee with the requisite experience and competency for the same job”, while still taking into account the employee’s relevant experience and other attributes

60 That said, the Tripartite Guidelines do not give employers a free licence to reduce wages. Any adjustment must remain reasonable in the circumstances. In particular, where there is no seniority-based element in the wage structure, or where the adjusted wages bear no reasonable relationship to the revised job scope, a downward adjustment may not be justified.

61 Accordingly, a change in job role and a reduction in salary do not, without more, render a re-employment offer unreasonable. On the facts of the present case, the claimant’s mere reliance on the change in job role and reduction in salary did not convince me that there is anything which was self-evidently unreasonable.

62 The second facet of reasonableness concerns process. The assessment cannot be confined to the substantive terms of the offer. The manner in which the re-employment exercise is conducted—including the timing, the quality of consultation, and the extent to which the employee is given a genuine opportunity to engage with and consider the proposal—may have relevance towards determining whether the employer’s re-employment obligations have been discharged in accordance with section 7A.

63 The Tripartite Guidelines articulate expectations in this regard. As noted earlier, paragraph 8 states that engagement on re-employment should ordinarily commence not less than six months prior to retirement. The Annex to the Tripartite Guidelines similarly identifies the adequacy of consultation as a relevant consideration. The evident purpose of early engagement is to allow meaningful discussion of possible re-employment arrangements, competencies required, training needs, and anticipated remuneration. This affords the employee sufficient time to consider available options and to prepare for the transition which retirement entails.

64 Even after an offer is formulated, the Tripartite Guidelines recommend that it be extended at least three months before retirement, so that the employee is not placed under undue pressure in making a decision.

65 These expectations are not to be treated as mere legal requirements. They manifest basic virtues of courtesy, respect, and empathy towards employees who are approaching the end of their primary working lives. It must be borne in mind that retirement and re-employment mark a significant transition in an employee’s working life. Employment is not merely a commercial arrangement. For many, employment is closely bound up with personal identity and financial security. The manner in which the transition is managed may therefore assume considerable importance.

66 Where engagement is perfunctory or opaque, employees may feel that their past contributions have been overlooked, or that the terms proposed are imposed rather than fairly negotiated. Such perceptions, whether justified or not, can readily give rise to dispute and a breakdown in the employment relationship.

67 Further, working life passes more swiftly than it appears at the outset—not unlike the morning mist which shortly yields to the rising sun. Those who today sit on the employer’s side of the table in re-employment discussions will, in time, find themselves on the other side, with the same expectation and hope that such discussions be conducted with sensitivity, openness and respect.

68 In the present case, I was satisfied that the respondent did not reasonably engage or consult the claimant in relation to re-employment.

69 To recapitulate, the process was compressed into a period of some ten days, beginning on 8 June 2025 when the claimant first inquired about re-employment, and ending on 17 June 2025 when the respondent imposed a deadline for acceptance. Within that period, the claimant was required to decide whether to accept a different role with a significant reduction in salary. His request for a short extension—made while he was on medical leave—was declined. The following day, he was informed that he would be retired with immediate effect.

70 RR explained at the hearing that the one-week deadline was fixed because the claimant himself had earlier asked for a response within seven days when he first raised the issue of re-employment. When asked why an extension could not have been granted, she candidly acknowledged that the refusal may have stemmed from her own disposition and a desire to conclude the matter expeditiously.

71 I appreciated RR’s candour. Nevertheless, the explanation suggested that the deadline was fixed for reasons unrelated to any operational necessity. While administrative efficiency is important, it does not displace the obligation to conduct re-employment discussions with the degree of care and sensitivity contemplated by the statutory framework.

72 Where concerns are raised about a proposed re-employment arrangement, they call for proper engagement rather than a “take-it-or-leave-it” response. In a case of this nature, a face-to-face meeting would ordinarily have been appropriate, to explain the rationale for the proposed terms and to afford the employee a meaningful opportunity to articulate his concerns.

73 No such meeting was convened. Communications were conducted entirely by email. It was true that RR indicated that the claimant could reach out if he wished to discuss matters further, and stated that the company was “happy to support [him] through this transition”. However, those assurances must be viewed in context. On the morning of 17 June 2025—the very day of the deadline—the claimant’s request for an extension was rejected, notwithstanding acknowledgment that this was “an important decision”. In those circumstances, the invitations to engage give the impression of nothing more than a performative gesture, rather than a genuine offer for proper discussion.

74 Further, on 12 June 2025—before the claimant had conveyed his decision on the proposed re-employment terms—the respondent announced internally that he would be stepping away from his store visit and area management duties and would instead focus on training-related functions. That step was premature. It reinforced the impression that the outcome had effectively been settled before the consultation process had run its course.

75 It was therefore unsurprising that the claimant came to view the process as unfair. While the substantive terms may not have been self-evidently unreasonable, the manner in which they were presented quite understandably coloured the claimant’s perception of them.

76 Indeed, aspects of this dispute might well have been avoided with more deliberate engagement. For instance, RR explained that there had been no intention to limit the claimant’s re-employment to six months in absolute terms. Rather, the six-month period had been intended as a review point for a newly created role, the contours of which might evolve. Had that position been clearly articulated and discussed, it may have been open to the parties to agree to a re-employment term of at least one year, consistent with section 7A(6), coupled with an understanding that the scope of responsibilities could be reviewed after six months. The opportunity for such exploration, however, did not meaningfully arise. In the circumstances, the six-month term was understandably perceived by the claimant as lacking in sincerity and security.

77 Finally, even after the rejection of the re-employment offer, no explanation was provided as to why immediate retirement was necessary, particularly when the claimant had previously been permitted to continue working beyond the age of 63. There was not even the basic courtesy of giving the claimant notice, or payment in lieu of notice.

78 Viewed cumulatively, the manner in which the re-employment exercise was conducted fell short of the standard of reasonableness contemplated by the statutory scheme.

79 In those circumstances, the respondent was required to pay an EAP pursuant to section 7C(1). No such payment was made.

80 It therefore fell to the ECT to determine the amount of EAP that the respondent was required to pay. Section 8C(3) of the RRA provides that the ECT may take into account the Tripartite Guidelines and any steps taken by the employer to re-employ the employee. In addition, the ECT retains a discretion to order the payment of such amount of EAP as it considers just and equitable in all the circumstances of the case.

81 In determining what is just and equitable in the circumstances, it is important to observe that the employer’s obligation to pay the EAP as an alternative means of discharging its re-employment obligations under section 7A accrues while the employee remains employed in the employer’s establishment.

82 This is clear from section 7C(1), which contemplates that the employer must, during the employee’s employment, ensure one of three outcomes: continued employment under section 7A; transfer to another employer with consent; or payment of the EAP. Payment of the EAP, where applicable, is therefore more properly characterised as a sum owed by the employer which ought to have been discharged before termination, rather than as damages for breach. The practical implication is that, where the ECT is faced with a claim by a former employee for an unpaid EAP, subsequent events—such as whether the employee took reasonable steps to secure alternative employment after termination, and the outcome of any such search for employment—which would ordinarily be relevant in assessing compensatory loss, may not be directly applicable.

83 Instead, the proper approach is for the ECT to place itself in the position of the employer prior to termination and determine the amount of EAP that would reasonably have assisted the claimant to tide over a period while seeking alternative employment, thereby discharging the employer’s obligations under the RRA.

84 The difficulty of course is that the quantum of the debt is strictly speaking indeterminate, and in fact left to parties to decide. Section 7C(1) does not prescribe a fixed formula for calculating the amount of an EAP. It requires only that the employer take into account the Tripartite Guidelines: see section 7C(5) of the RRA. The Tripartite Guidelines in turn suggest (at paragraph 36) that the EAP “could be 3.5 months of salary”, subject to a contemplated cap of $14,750 to moderate the financial burden on employers. However, disputes may arise because an employer may regard the 3.5 months’ salary in the Tripartite Guidelines as nothing more than a suggestion (rather than an obligation) and offer a lower sum, whereas an employee may treat it as conferring an entitlement.

85 It would therefore be prudent for an employer to commence re-employment consultations early and, if unable to make a suitable re-employment offer, to notify the employee sufficiently in advance to facilitate a transfer of employment while the employee remains employed. If the employee secures alternative employment and the employer can facilitate the transfer in accordance with s 7C, then no EAP is payable. If not, meaningful discussions can be undertaken on the quantum of the EAP, with a view to reaching agreement. Should a dispute nevertheless arise, the employer would then be in a position to justify the quantum offered, and the ECT may determine whether the amount proposed is reasonable or whether it is just and equitable to order any additional payment.

86 The position is more difficult where an employer has been careless—or worse, callous—in conducting such discussions and has not properly addressed its mind to the quantum of EAP. In such cases, there may be little material before the ECT to assist in assessing what is just and equitable—as in the present case, where the respondent’s position was that no EAP was payable at all. In those circumstances, there may be greater justification for adopting the yardstick suggested in the Tripartite Guidelines of 3.5 months’ salary as a reference point, subject to appropriate adjustment depending on the facts. While the basis for that suggestion is not articulated, it may reasonably be inferred that it reflects an informed estimate of the time older employees may require to secure alternative employment.

87 It is unnecessary, however, to express any concluded view on this. In the present case, RR stated that the respondent was not disputing the quantum of EAP claimed by the claimant. That was a sensible position. The amount claimed—$14,750—represented approximately 2.3 months of his gross monthly wages, and was equivalent to the ceiling suggested in the Tripartite Guidelines. It was a reasonable amount in the circumstances and I therefore allowed the claim of $14,750 in full.

88 In the result, I allowed the claimant’s claims for the sum of $26,350 in full. In addition, I ordered the respondent to pay $250 in costs and $70 in disbursements.