What happens when an employee who has raised health and safety concerns against its employer executes a release upon his or her termination? Can that employee still pursue a complaint against the employer?
As is often the case, the answer is “it depends” – in this case, on the nature of the complaint and the form of the release.
According to a recent Saskatchewan Court of Appeal decision, a release can prevent an employee from proceeding with a complaint that relates to personal discrimination or harassment against the employer – provided the release is valid and was signed after the occurence of wrongdoing that led to the personal claim.
However, where the claim is a systemic one – such as, for example, widespread harassment of more than one complainant – an otherwise valid release signed by the complainant may not be binding, at least as far as the general complaint. An adjudicator under the pertinent legislation may follow up on the individual complaint, either alone or in connection with other complaints.
The Case: Wieler v. Saskatoon Convalescent Home
In this case, the employee, who was a nurse at a long-term care home, was dismissed by the employer during her probationary period on the basis that she was “not suitable.” The employer offered her Termination Pay equivalent to one month’s pay in exchange for a general release of claims. After consulting with independent legal counsel, the employee signed the release.
One month later, the employee filed a complaint with the Occupational Health and Safety (“OH&S”) division of the Saskatchewan Ministry of Labour. The employee alleged that, prior to her dismissal, she raised safety issues with management regarding abusive and unsafe behavior at the nursing home, and that her termination after complaining about those work conditions constituted a reprisal.
The OH&S Officer reviewing the complaint chose not to proceed because there was a signed release. The employee appealed the Officer’s decision to an adjudicator who held that the release – which was clear and unequivocal – barred her complaint. The employee then appealed to the Saskatchewan Labour Relations Board (“Board”).
The Board agreed with the finding of the adjudicator and the OH&S Officer. The employee had given a release in respect of a personal right. In order for the release to be effective at barring the employee’s personal OH&S complaint, it had to be signed after the personal issue arose. In this case, it was. Therefore, the employee was barred from advancing her OH&S complaint, which was dismissed.
What this means for employers
Employers should consult with a seasoned employment lawyer to ensure that when they resolve a potential claim, the release will be effective. Such releases should include reference to all potential claims related to employment and dismissal generally, as well as those related more specifically to statutory rights such as occupational health and safety and human rights. There are very specific requirements in order for a release to bar human rights complaints.
What this means for employees
If you have lost your job you are asked to execute a release, you ought to consult with an experienced employment lawyer. You should fully understand the repercussions of signing a release and communicate openly with your lawyer as to what your plans, needs, and goals are. Executing a release without doing so may block you from pursuing actions or complaints against your employer – at least when it comes to personal wrongdoing.