Signing a Full and Final Release Does Not Prevent Employee From Suing for Sexual Harassment
One of the most talked about Ontario employment cases in 2018 centred on whether signing a release bars an employee from suing for sexual harassment.
The plaintiff in the case was a former female employee of The Governing Council of The Salvation Army of Canada (“Salvation Army”). She worked as a manager of one of its thrift stores in Ontario for five months in 2011. The plaintiff then left her employment and negotiated a settlement with the Salvation Army for $10,000. At that time, she also signed a memorandum of settlement and a release.
In 2015, the Salvation Army received a written sexual harassment complaint from another individual regarding the conduct of its National Director of Operations (“Director”). As a result of this complaint, an investigation was commenced into the Director’s conduct. The investigation uncovered eight other complaints, which included that of the plaintiff. The Salvation Army subsequently terminated the Director, for cause.
In 2016, the plaintiff sued the Salvation Army and the Director, seeking a damage award for negligence, intentional infliction of emotional harm and breach of fiduciary duty. In her statement of claim, she alleged acts of sexual harassment perpetrated by the Director. The plaintiff had not made any sexual harassment allegations at the time of the signing of the release in 2011; she only commenced the action after being contacted during the investigation into the Director in 2015.
The Director argued that the signed release prevented her from pursuing him and the Salvation Army. Relevant portions of the release included the following paragraphs:
“1. This Release is given by [the plaintiff] with respect to her employment at The Salvation Army and the ending of her employment.
2. In accordance with the terms of settlement outlined in the attached letter dated August 8, 2011, I, [the plaintiff], agree to release any and all claims I have or may have against The Salvation Army, past, present or future, known or unknown, which arise out of or which are in any way related to or connected with my employment or the ending of my employment.
3. This release of claims shall include any claims against anyone or any organization in any way associated with The Salvation Army which arise out of or which are in any way related to or connected with my employment or the ending of my employment.
8. This release shall bind me, and all persons claiming through me, to the benefit of The Salvation Army and all persons and organizations associated with it.
9. I declare that I have read over and fully understand this document and I voluntarily accept the terms of this document for the purpose of making a full and final settlement of all claims as set out above.”
The Director sought summary judgment dismissing the action on the ground that the plaintiff had signed the full and final release. He also submitted that the court did not have jurisdiction to hear the claim and that the proper forum should be left to the Ontario Human Rights Tribunal. Finally, he argued that the evidence did not support the claims.
The court began by looking at the language used in the signed release. It found that the scope of the release was defined by the words “… arise out of … my employment”. The court stated:
“I conclude the Release cannot be considered all inclusive, including the claims herein, as the scope was the employment relationship. While many of the alleged events occurred at the place of employment and, perhaps, because of the employment, sexual harassment, intimidation and other improper conduct are not connected to employment. They are clearly separate matters.”
The court found that the settlement pertained to the severance only. Therefore, the alleged conduct fell outside of the employment relationship and the release did not bar the plaintiff’s claims. It stated that specific language to such claims would have had to be added to the release to bar the plaintiff’s claim.
Regarding jurisdiction, the court concluded that, because the claim was not based on sexual harassment, but rather the common law claim of intentional infliction of emotional harm, and that the events alleged were not part of the employment relationship, the court had jurisdiction.
Finally, the court rejected the argument that the plaintiff’s evidence did not support her claims. The court stated:
“This argument ignores the evidence [the plaintiff] did present, a detailed account of multiple events. The argument also ignores the reality of the impact of such conduct, only now being recognized.
Victims of sexual misconduct and harassment often do not report such events. The psychological or emotional damage is frequently hidden. [The plaintiff]’s evidence addresses those concerns. It would be premature to assess her evidence.”
As a result, the court rejected the Director’s arguments. It dismissed the motion for summary judgment, concluding that there were genuine issues requiring a trial.
The Kitchener-Waterloo employment lawyers at Petker Campbell Postnikoff have many years of experience advising non-unionized employees and employers on a variety of workplace issues, including sexual harassment and termination. Our team will walk you through the details of your dispute, advise you on your rights, responsibilities and obligations, and help you understand your options. If your dispute cannot be settled through negotiation, we can represent you through mediation and the court process.
We represent clients throughout southern Ontario, including the communities of Cambridge, Guelph, Elmira, Brantford, Fergus, Elora and the surrounding area. Call 519-886-1204 or contact us online for a consultation.