From the email I receive, I know that there are a lot of labour (and labor) lawyers and HR practitioners reading this blog. I would greatly appreciate your thoughts, comments and suggestions on this.
A short time ago, the Ontario Human Rights Commission released Guide To Releases With Respect To Human Rights Complaints which sets out its position on "standard form" releases, and the circumstances under which they will be sufficient to bar the processing of a complaint under section 34(1)(b) of the Ontario Human Rights Code. Under this section the Commission can refuse to deal with a complaint where "the subject-matter of the complaint is trivial, frivolous, vexatious or made in bad faith".
Here's how it works (or worked). An employee is terminated, is offered and accepts a severance package and signs a release, including a release with respect to human rights matters and an agreement not to file a complaint under the Code. The employee subsequently files a complaint under the Code alleging that he or she was discriminated against by the employer and the employer takes the position that the complaint was filed in bad faith because the employee had signed a release of all claims (including human rights) and asks the Commission not to deal with it.
The Guide suggests that this might not be and probably isn't enough (at least according to the Commission). Among other things the Guide provides that:
- The mere existence of the signed release is not, without more information, sufficient to conclude that the human rights complaint was brought in bad faith. Rather, the Commission is required to look into the circumstances surrounding the signing of the release.
- To meet the test of ‘bad faith’ the Commission must find that the evidence reveals, not an honest or negligent mistake on the complainant's part, but an intention to mislead – the conscious doing of a wrong because of 'dishonest purpose' or 'ill will.'
- Where a complainant has fully agreed to settle a human rights complaint, has received or was provided with adequate time to receive legal advice; has signed the release form; and has received sufficient consideration; the filing of a human rights complaint may well constitute such a dishonest purpose or ill will.
- The Commission requires some evidence that the parties to a release were aware of the human rights issue. Otherwise, a statement in the release that the complainant agrees not to file a complaint or commence a proceeding under the Code will constitute contracting out, and the release will not be evidence of "bad faith" under s. 34. It will not be a bar to proceeding.
- The settlement of a human rights complaint should be explicit. Where the evidence is clear that human rights issues did not form a part of the discussions of the parties prior to the signing of the release that will be sufficient to end the inquiry. The release will be an impermissible contracting out of the protections of the Code.
- According to the Commission, "An employer should, at the time of termination, ask the employee orally or in writing whether there are any outstanding human rights issues or concerns."
I'd be very interested in hearing from you on, practically, how this impacts on the way you will proceed with or advise on terminations (if at all, I suppose). Are there similar requirements in other countries/jurisdictions and if so, how do you deal with it?
Please email me or post a comment.
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