It has been generally considered a tricky proposition to allow for a general release provided on termination of employment to include a “catch-all” term by which the person being terminated also surrenders all rights to file a human rights complaint.

The theory behind this argument is that human rights may be not be “contracted-out”. That theme, while certainly true for a general term of employment, is not however applicable to a termination settlement.

This issue was reviewed recently by the Human Rights Tribunal of Ontario.[1]

Step One

The compensation sum paid, in the case of a “not-for-cause” termination must satisfy the minimum statutory payment. In this instance, the sum paid included three weeks in addition  to the one week owing by statute.

The Wording

The release document contained more than a provision which released a human rights remedy. It stated that the employee knew of no reason to file a complaint and would not do so. The precise wording was as follows:

AND IT IS FURTHER AGREED that my rights pursuant to the Ontario Human Rights Code…have not been violated in any manner. In the event that I should hereafter make any claim…or commence…any…proceeding…against the Releases…this document may be raised as an estoppel and complete bar to any such…proceeding…Further, I acknowledge and agree that, in light of this settlement, any complaint filed under the Human Rights Code…which in any way relates to my employment would be frivolous, vexatious and an abuse of process….

…

AND I HEREBY DECLARE that I fully understand the terms of settlement as set out in the attached Agreement dated June 9, 2017 that the terms thereof constitute the sole consideration for this Release and that I voluntarily accept the amounts stated therein for the purpose of making full and final compromise, adjustment and settlement of all claims aforesaid.

The decision did not turn on the particular words used in the release. The Tribunal concluded that generally speaking a release of the human rights remedy would be upheld, absent exceptional circumstances. It further stated that it was not the task of the Tribunal to inquire into the adequacy of the compensation paid on settlement.

Exceptional Circumstances

These defences to what would otherwise be a valid release were not defined. That said, the employee raised unsuccessfully issues such as lack of cognitive capacity, duress, and unconscionability. These are likely reflective of the exceptions. Each are each very difficult arguments to win.

Lesson for The Employer

It would be prudent for the company to include such a term as a standard clause in every settlement.

Employees’ View

Individuals with valid human rights claims should go nowhere near such a release. They should be mindful that the statutory minimum sums are due on termination without any form of release, absent allegations of cause.

Get Advice and Know Your Rights

For advice on this issue and all employment law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.

[1] DS v Bosco