We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters.
20 March 2019
Employers often ask their employees to sign a release as a condition of receiving an enhanced severance package in a without-cause termination. If the employee accepts the package and signs the release, the release will usually bar legal claims by the employee arising from their employment.
It has not always been clear that a release prevents an employee from bringing an unjust dismissal complaint under the Canada Labour Code.
The code gives certain non-unionised employees who have completed 12 consecutive months of continuous employment the right to file a complaint if they consider their dismissals to be unjust. The code says that that right applies "notwithstanding any other law or any custom, contract or arrangement". In an earlier case, the Federal Court said employees can file an unjust dismissal complaint even after signing a release; this decision was upheld by the Federal Court of Appeal. Despite the Federal Court's ruling, some unjust dismissal adjudicators have refused to hear complaints where the employee has signed a valid release.
A recent Federal Court decision has again clarified that an employee may file an unjust dismissal complaint even if they have signed a release and any decisions by adjudicators to the contrary are bad law.
In this case, an employee was terminated without cause and signed a release in exchange for a severance package. After signing the release, the employee filed an unjust dismissal complaint. The employer asked the adjudicator to dismiss the complaint because the employee had signed a release – the adjudicator refused. The employer applied to the Federal Court for a review of the decision.
The Federal Court dismissed the application. The court confirmed that the code "protects the right of an employee to complain of an unjust dismissal even if that employee has signed a contract by which his or her employment is terminated"; however, a signed release may be an important factor in determining what remedy to award if the dismissal is found to be unjust. This leaves open the possibility that an adjudicator may find that the employee is not entitled to anything more than what has already been provided in exchange for the release.
This is an important decision for federally regulated employers that terminate without cause and offer a severance package conditional on signing a release. Employers must know that a release will not prevent an employee from filing an unjust dismissal complaint. They must adjust their settlement practices and releases to address this risk.
For further information on this topic please contact Shane D Todd, Christopher D Pigott or Rachel Devon at Fasken by telephone (+1 416 366 8381) or email (firstname.lastname@example.org, email@example.com or firstname.lastname@example.org). The Fasken website can be accessed at www.fasken.com.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
ILO is a premium online legal update service for major companies and law firms worldwide. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription.
Shane D Todd
Christopher D Pigott