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You have already signed a full and final release as part of your settlement package following termination, but you want to bring a claim to seek more money. Is it too late? Now what?

Nelligan O’Brien Payne gratefully acknowledges the contribution of Avery Ross, Student-at-Law, in writing this blog post.

Employers often require employees to sign a full and final release in exchange for settling an employment dispute. These releases are a contract between the terminated employee and the employer – in exchange for the settlement money, the employee agrees not to bring any claims against the employer and related parties.

A well-worded release can protect employers from most claims that a terminated employee could bring, but there are exceptions.

A well-worded release can protect employers from most claims that a terminated employee could bring, but there are exceptions. Two common exceptions are claims for unjust dismissal under the Canada Labour Code as well as complaints to regulatory colleges. Depending on the wording of the release, there may also be other exceptions, including certain claims for sexual harassment.

  1. Employees governed by the Canada Labour Code can bring claims for unjust dismissal
    • The Canada Labour Code is a statute that governs federally regulated workplaces such as the Government of Canada and most federal Crown corporations. A federally regulated employee who is terminated can bring a complaint for unjust dismissal if their employer dismissed them for reasons other than the company downsizing or decentralizing the employee’s role (referred to as lack of work or discontinuance of a function in the statute). A successful unjust dismissal claim may result in the terminated employee’s reinstatement or in a financial award or both.
    • When a federally regulated employee is terminated and signs a release as part of the dismissal, an employer remains exposed to a claim for unjust dismissal. The Canada Labour Code states that claims for unjust dismissal are not impacted by contracts, which includes a settlement agreement between the employer and employee. The Court has interpreted this exception to mean that an employee cannot release the employer from an unjust dismissal claim and, notwithstanding a signed release, the employer remains exposed to such a claim.
    • There is a 90-day deadline to bring forward a claim for employees governed by the Canada Labour Code.
  2. Complaints to Regulatory Colleges
    • Regulatory colleges are organizations that control who can practice in certain professions, the ethical requirements to practice, and the standards that the professionals must meet in order to practice. For example, medical professionals, teachers, and engineers are all regulated by colleges such as the Ontario College of Physicians and Surgeons. Colleges are also responsible for disciplining members of the profession. In order to perform this disciplinary function, these colleges rely, in part, on complaints from the public. This includes complaints from co-workers and employees.
    • Although a release often prevents a terminated employee from bringing claims against their co-workers or supervisors, a terminated employee cannot be forced to release legitimate complaints to a regulatory college. If the terminated employee knows that a co-worker or supervisor engaged in behaviour that warrants a complaint to a college, the court has found that a terminated employee is free to bring that complaint notwithstanding the existence of a release. In coming to this conclusion, the court found that it is contrary to the public interest to allow an individual to exchange their silence in a college disciplinary process for money. Even with a comprehensively worded release, the employee can likely bring a complaint about their co-worker’s behaviour to the appropriate regulatory college.
    • As deadlines to bring forward complaints to regulatory colleges can vary among specific organizations, in these situations it is important to speak with a lawyer about bringing forward a complaint as soon as possible.

If you were terminated and presented with a full and final release, consider whether you have any claims you might want to bring against your former employer, supervisor, or co-workers before signing. However, if you have already signed, you may still have other avenues to pursue. Before you sign the release or if you’re questioning your rights after having already signed, contact our Employment Law Practice Group who can help explain your rights and options.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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