Human rights complaints before the Human Rights Tribunal of Ontario from terminated employees have been on the rise recently. Such complaints do not cost the worker anything to file, applicants do not require lawyers and can often obtain free legal advice and representation from the Ontario Human Rights Legal Support Centre and the applicant does not have to worry about being ordered to pay the defendants legal costs.
Therefore it is more important than ever for employers to try to obtain a release of liability of any potential claims from dismissed employees when managing terminations. The Tribunal will enforce releases in the favour of employers when they are properly drafted.
Tips for Employers to Greatly Reduce the Risk of Human Rights Complaints:
- The release should have specific language to protect against human rights complaints and a confirmation by the employee that the employer has complied with the code and not discriminated against the employee or his or her employment. A clause to this effect must be included in the signed termination lett
- Explain to the employee in the termination meeting that the release language means that the employee is agreeing the employer has not discriminated against him or her contrary to the code
- Offer a termination package that exceeds the minimums required under the Employment Standards Act. If the employee signs the release but only receives the minimums, the release will not likely be enforceable because the employee did not receive any “consideration” for the release
- Recommend and give the employee sufficient time to seek legal advice.
Although the Tribunal has the power to set aside a release, the following tips will help reduce the risk of exposure to a matter before the Human Rights Tribunal of Ontario