Law Times

Law Times • November 14, 2011 An online resource 1.800.263.3269 Focus On LABOUR & EMPLOYMENT LAW Human rights releases can work But employers must take precautions to protect themselves BY KENNETH JACKSON For Law Times I t's a common complaint among employment law- yers that the Human Rights Tribunal of Ontario is overrun with complaints from scorned employees. But some employers have found a way to ward off unneces- sary and unexpected complaints by having terminated employ- ees sign a comprehensive release during the settlement phase. Th e employee signs the re- lease in which they agree that they've been treated and com- pensated fairly. Th e document protects the employer from po- tential claims at the tribunal later on. But it's not as simple as just having employees sign away their rights. Nobody can con- tract away their human rights, says Allison Greene of Karimjee Greene LLP in Toronto. "You could not as an em- ployer have an employee sign something saying, 'Even if we violate your human rights, you can't pursue a claim against us,'" says Greene. But there's a bit of wiggle room, something many employ- ers don't know about, says Land- on Young, managing partner at Stringer Brisbin Humphrey Management Lawyers in To- ronto. "With a release, sometimes there's confusion whether it will be enforced. Th ere's a belief it isn't worth getting," says Young, adding employers need to know the law more than ever because "it's not surprising at all for em- ployers to receive a human rights complaint after termination. Th at's why they want to do as much as they can to stay out of that scenario." Young notes he reminds em- ployers that the tribunal has the power under the Statutory Pow- ers Procedure Act to decide how it will control its own process. Th at means it can decide not to accept a complaint on the basis that the parties signed the release fairly. Recent case law suggests that as long as there's a release that makes it clear that the employee has agreed not to bring a com- plaint to the tribunal, it will en- force it unless there's a very good reason not to, says Young. Th e tribunal typically won't accept the release if a party signed it under duress or there was fraudulent misrepresenta- tion involved. Th e duress usually has to be a form of unlawful co- ercion. "It would have to be the em- ployer doing something almost illegal," says Young. "If the em- ployer said, 'We're not going to pay you your wages that we owe you and that you worked for un- less you sign,' they know you are under a lot of economic stress and by withholding your wages, they are putting a lot of pressure on you. Th at would likely be considered economic duress." Th e most recent case law showing how releases can work involved a group of terminated employees in Cuba v. Global Egg Corp. Th e employees had all signed releases but fi led a claim in which they nevertheless al- leged they had faced discrimina- tion based on their ethnicity. Th e employees, whose na- tive language is Spanish, argued they didn't understand the re- lease. As the termination letter and release were explained in both English and Spanish, the tribunal ruled in favour of the employer. Furthermore, the employees had a week to review the release and obtain third-party advice, factors the tribunal also took into account. "On a review of the evi- dence, I fi nd no reason not to give eff ect to the releases," said adjudicator Sherry Liang in her decision on June 8, 2011. "Lack of sophistication is not a general factor serving to nullify the ef- fect of a release. In this case, the applicants were urged to con- sult with legal counsel or to ob- tain other advice before making their decisions, and did. "In agreeing to the terms of the letters, they freely chose to give up their rights to raise the human rights claims in these ap- plications. In the circumstances, it would be an abuse of the tri- bunal's process to permit the ap- plications to proceed and they are dismissed." In Monteiro v. Inspec-Sol, an employee argued she signed a release under duress and didn't understand what it meant. Ac- cording to the decision, Cath- erine Monteiro was to receive fi ve additional weeks of pay if she signed a release and had a week to think it over. A few days later, she went to her employer to ask questions but as the per- son she wanted wasn't available, she signed anyway. Young notes the tribu- nal examined two issues: whether the release nulled any claims and whether Monteiro collecting workers' compensa- tion at the same time due to an injured shoulder. Releases 'will usually work if the employer does it right,' says Landon Young. suff er ed economic or psycho- logical duress. "Ms. Monteiro was unable to show how fail- ing to receive an explanation for her termination amounted to duress," said Young in a blog post on his fi rm's web site. "She also acknowledged that she did not indicate to anyone at the company at the time of sign- ing the release or immediately thereafter that she was under duress." In the end, the tribu- nal found the company did nothing wrong. But Monteiro also argued she didn't know what she was giving up when she signed the release. Th e tribunal, however, found she didn't take the time to under- stand the release even though she had time to think it over. A third case from late 2010 involved fraud allegations but not by the employer. In Arora v. Weston Bakeries, Amit Arora lost his job after the company learned he was double-dipping by work- ing for another employer but When the company found out, it held two days of meetings with Arora. In the meantime, the union and eventually Arora signed a release. He received a neutral reference letter and his record of employment said he was laid off . Arora later fi led a complaint with the tribunal arguing he signed the release because he thought the employer was going to report him to police and the Workplace Safety & Insurance Board for fraud. While Arora said he didn't have enough time to make his decision, the tribu- nal dismissed his application. In light of the issues, Young says employers should have ap- propriate language in the re- lease; explain to the employee that the language means they agree they haven't been discrim- inated against; off er a settle- ment package that exceeds the minimum required under the Ontario Employment Stan- dards Act; and give them time to decide. "Th ey are worth do- ing. Th ey will usually work if the employer does it right." Extended leaves blur lines between quitting and firing BY KENNETH JACKSON For Law Times A woman gets in a car accident in the fall of 2009 and goes on disability. She's on it for about a year. She's getting better, so her physiotherapist writes a letter saying she can return to work but on a modifi ed basis with fewer hours and tasks. Because of her slightly improved health, her insurance company tells her she's going to lose some benefi ts. Th e letter goes to her employer as well. She can go back to work and needs to. But she receives no response. Th is goes on for a few months with no response from her employer. She then has her lawyer draft a constructive dismissal claim in the fall of 2010 saying the cli- ent expects a termination package. Th e employer See Employers, page 10 CHOOSE FROM CANADA'S TOP MEDIATORS AND ARBITRATORS Do you have a dispute which is seemingly incapable of settlement or which requires a speedy resolution? A mediation or arbitration might be the answer. Please contact me for a free consultation. I have over 35 years experience as a lawyer settling commercial claims of all kinds whether that claim involves an insurance policy or otherwise. In 2010 I started to practice exclusively as a mediator and arbitrator with ADR Chamber. Please visit www.adrchambers.com to view my cv. Richard H. Krempulec Q.C., LL.M. (ADR) Untitled-1 1www.lawtimesnews.com www.adrchambers.com direct: 416.593.3942 bookings:1.800.856.5154 rkrempulec@rogers.com 11-11-07 9:41 AM PAGE 9

• Cover
• IBA Censored?
• Law Matures
• Focus On Labour and Employment Law