For more information, see Section IV-12f) – “Considerations when asking an employee to sign a release.”
Tips for parties to a release
i) For employers
- At the time of termination, ask the employee verbally or in writing whether there are any outstanding human rights issues or concerns.
- It is important to give the employee a reasonable opportunity to consult with independent counsel or an advisor before being required to answer the above question or to sign a legal release.
- Reasonable requests for an extension of time should be granted.
- Where the answer is "yes," ask for details, to help you fairly assess what would be a reasonable offer for settling the human rights issues.
- Where the answer is "yes," it is best to also prepare Minutes of Settlement, in addition to the release, which will expressly deal with the human rights issue.
- Also, where the answer is "yes," the text of the standard form of release should be altered to include a clause that separately recognizes that there is a human rights issue or complaint that has been fully and finally resolved between the parties.
- Where the answer is "no," and the employee has got, or had the opportunity to get, independent advice, it is appropriate for the release to state that the employee has got independent legal advice, is aware of his or her rights under the Code, and promises that he or she is not asserting such rights or advancing any human rights claim or complaint.
- To avoid claims of unwarranted pressure or duress, it is best that an employer not accept a signed release on the same day as termination (even where the employee offers to sign it on that day).
- Employers wishing to guard against a claim that they have not compensated a complainant for the human rights issue should consider clearly stating in the settlement specific sums for each “head” of damages, such as severance, termination, vacation pay and wages, as well as a set amount in compensation for any alleged human rights concern.
- The employer should state that the employee will receive his or her statutory entitlements (wages owed, vacation pay, statutory termination or severance payments) regardless of whether he or she signs the release.
- The release itself should contain a clause that makes it clear that signing the release was not a precondition for being paid these statutory entitlements.
- Termination meetings should be conducted with dignity, ensuring privacy, and with the employer exhibiting professionalism.
- If an employee has allegedly engaged in criminal wrongdoing, such as theft or fraud, the employer should not promise to refrain from contacting the police in exchange for a release.
- Where an employee has a disability that could affect their ability to properly agree to the terms (for example, severe depression or anxiety, drug dependency) or is otherwise incapable (for example, on strong medication), the signing of the release may have to be postponed or may not be possible.
- In such cases, where the employer has a reasonable basis to believe that an employee is experiencing a mental disability that could impair his or her judgment, he or she should ask the employee to get medical clearance before signing the release.
ii) For employees
- Seek outside independent advice before signing a release, or answering a question about whether a human rights issue exists.
- Speak with your advisor about the full range of remedies that may be available at common law, under the Employment Standards Act, the Human Rights Code, or other statutes.
- To avoid unwarranted pressure or duress, it is best that an employee never accepts or signs a release on the same day as termination.
- After consulting with independent counsel or an advisor, separately negotiate each head of damages or remedy when negotiating the terms of the settlement.
- First request a calculation or breakdown of your statutory entitlements and other entitlements before negotiating the terms and conditions of any settlement of an outstanding human rights issue or complaint.
- Ask that the settlement set out specific sums for each “head” of damages, such as severance, termination, vacation pay and wages, as well as a set amount in compensation for any alleged human rights concern.
- Ask for statutory entitlements.
iii) Sample wording for releases
It is not enough just to use the words suggested below. The parties to a release should also deal with each other in a way that is consistent with the principles and procedures set out in Section IV-12f) – “Considerations when asking an employee to sign a release.” For more information, refer to the Ontario Human Rights Commission’s Guide to Releases with Respect to Human Rights Complaints (May 2006).
- The parties agree that they have discussed or otherwise canvassed any and all human rights complaints, concerns or issues, arising out of or in respect to the employee's employment at Company "A"
- The parties agree that this agreement constitutes a full and final settlement of any existing, planned, or possible complaint or complaints against the employer under the Human Rights Code up to the date of this agreement, arising out of or in respect to the employee's employment at Company "A."
- The parties agree that the employee has received a separate sum in the amount of $X as compensation for settling and resolving the outstanding human rights complaint, concern or issue.
Where the employee agrees that that there are no human rights issues or concerns, the following can be included instead of paragraphs 2 and 3]:
The employee agrees that he or she is aware of his or her rights under the Human Rights Code, and confirms that he or she is not asserting such rights or advancing a human rights claim or complaint.
- The parties further agree that signing this agreement is not a condition for the employee to first receive money he would otherwise be entitled to by operation of law. Such moneys include the separate sum of $X for wages, $Y for statutory severance pay, and $Z for statutory termination pay.
- The employee agrees that he (or she) has been given enough time and opportunity to get independent legal advice before signing this settlement agreement and
(a) He [or she] has done so, or
(b) He [or she] has freely chosen not to do so.