I read an interesting case recently that could be considered controversial: an employer was permitted to contract out of its human rights obligations with some vulnerable employees who were at an economic disadvantage and who experienced significant language barriers. How did the employer accomplish this? The employer added a provision in its termination letter that offered the employees consideration in exchange for signing releases preventing them from launching a human rights complaint.
The employer terminated several employees following a reorganization of the company and a resulting closure of one location. The terminated employees had worked with the employer for between one and seven years. Many of the employees involved spoke mainly Spanish and had limited skill in English.
The employees were provided with identical letters that set out the amount of specific termination notice and severance, depending on length of service of the particular employee. The relevant part was a release in exchanged for a lump sum payment of two weeks’ salary.
The employees had to sign the letter accepting the additional payment in exchange for the release. The letter affirmed the employees were aware of their rights and that they were to be given sufficient time and opportunity to get independent legal advice before signing. The contents of the letters were explained first in English and then translated into Spanish for the employees. The employees took the opportunity to speak with two lawyers at the Centre for Spanish Speaking People. In the end, they all signed the release.
Eventually, the employees wanted to bring a claim at the Human Rights Tribunal alleging discrimination on the ground of ethnic origin. The tribunal refused to hear the matter because the employees signed the release. The workers were presented with the release; they were informed of the contents of the release in Spanish; they were told to get independent legal advice, which they did; and they voluntarily signed the releases and received consideration. The employees’ lack of sophistication and poor economic circumstances were not sufficient to set aside the terms of the release.
Counsel for the employees argued that it was “grossly unfair” to uphold the releases given that the employees were economically vulnerable and had no choice but to sign the releases. The tribunal responded, “I do not find it appropriate for the Tribunal to second-guess parties who have, after obtaining legal advice, decided to enter into an agreement giving up those rights for monetary consideration”.
Ultimately, the releases were enforceable and the employees could not bring their human rights claim to the tribunal.
Do you think the employees had a “choice” here? Were the employee and the employer parties contracting with equal bargaining power such that the releases should be enforceable? Do you think that a severe language barrier or economic disadvantage should have been taken into consideration in this case?
Christina Catenacci
First Reference Human Resources and Compliance Editor
Additionally, find Christina at https://www.christinacatenacci.com/
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I agree with you Paul assuming the “they” you refer to are the workers. The employer clearly had good legal council, they won and the only “extra” expense they incurred was one or two weeks base pay. The other payments the employer made were required by statute. This may be an example of the old adage, “you get only what you pay for.” Although it is third hand information, the OHRT decision states that the workers “were not told what to do” by the lawyers at the Centre for Spanish Speaking Peoples, in fact the decision goes on to say, “each made their own decision.”
The reason I say that staff training may have prevented a lot of grief in this case is evident in the wrongly held beliefs of a least one of the workers.
The decision at paragraph 18 states that one of the workers, “did not believe that the company should be able to terminate her job for no reason. She was very unhappy with the situation and
explained that she felt the company had discriminated against her when it waited until the very last day of work to tell her that she was losing her job.
In fact the company was paying wages in lieu of notice and in what way was she being discriminated against because of the timing of the termination. If the worker was given 2 weeks notice of termination, would that have been non-discriminatory.
Providing training to employees about their rights is self-serving for employers. Had these workers been better informed, the company may have been saved the time and expense of this human rights complaint, notwithstanding they were successful.
Were the workers given adequate council? Well, if they had been advised not to sign and did not receive the one or two weeks extra pay AND had their human rights complaint dismissed, we would still be saying they had inadequate council. Sometimes you can’t win for losing.
Great debate. Thanks for your contribution.
Thanks for your comment Paul. I agree the legal advice provided to the workers may have been somewhat lacking both before the workers signed the release, and before commencing the human rights claim.
thanks,
Christina
Thanks for your comments Andrew. I agree that this case could create a dangerous precedent and may not be sending the right message to employers.
At the same time, you raise a good point about these workers – how much did they really understand and at what point were they knowledgeable about their rights (enough to file a human rights complaint)?
I concur that the best way for employers to take smart preventative action is through regular workplace training about employees’ human rights. Perhaps the litigation could have been avoided with some education and some care in addressing language barriers from the start.
thanks,
Christina
This case is a great example of why employers should invest in training for their workers. In my workplace human rights training workshops, I explain carefully to managers AND workers that they must have reasonable evidence of discrimination in order for a human rights case to succeed. It is interesting that these workers did not understand their legal rights when reviewing the termination letter from the employer yet they DID understand enough of their rights to file a human rights complaint. It appears that someone educated the workers with respect to their rights sufficiently to have them file the complaint. Too bad the employer had not invested in educating the workers in the principles of a bona fide complaint.
Thanks for reviewing this case, Christina. The issues are relevant, for sure. It worries me though that employers will believe that now this type of agreement will always be upheld. The other thought I had as I read the case was, “Did the workers have a reasonable chance of success before the OHRT had the case been allowed to proceed? The employer had legitimate business reasons for laying off 18 workers. What is the evidence of illegal discrimination against these workers?
Sounds to me like the legal advice they received wasn’t very good. It’s too bad they probably won’t be able to sue the lawyer for failing to provide adequate council.