Employees’ rights and safety protections are so important that employees can’t give them up even if they want to. But based on a recent case, those dynamics may change when the employee is on the way out and no longer needs the protection.
A Saskatoon convalescent home fires a nurse nearing the end of her 6-month probationary employment for lack of suitability. A month later, she inks a deal waiving all legal claims against the home in exchange for a severance payment of one month’s salary. But a month after that, she files an OHS complaint against the home contending she was fired in reprisal for raising a safety issue, namely workplace bullying. The nurse argues that the release doesn’t cover OHS claims; the home insists that it covers all claims related to the nurse’s termination.
YOU MAKE THE CALL
Does the Severance Release Bar the Nurse from Asserting an OHS Reprisal Claim?
|Exhibit A: The Release
I hereby release the home “from any and all actions, causes of actions, claims and demands of every nature or kind arising out of, or in any way related to, or connected with my employment or termination thereof with the [home], including, but not limited to, any claims for notice of termination, pay in lieu of such notice, bonuses, overtime pay, benefits or benefit coverage or any other compensation or benefit whatsoever.”
A release is enforceable under 3 conditions:
|1||Employee must receive consideration, i.e., something of value for giving release||YES||The severance payment the nurse received was adequate consideration|
|2||The release must be clearly written||YES||While it didn’t specify OHS claims, the release language covered “all” claims relating to the nurse’s employment and termination|
|3||The employee understands the release and signs it voluntarily||YES||There was no argument that the nurse didn’t understand or was coerced into signing the release|
The finding that the release met all 3 conditions would have ended most release cases. But this wasn’t a normal release case. The twist: The claim the nurse wanted to assert was a safety right under the OHS law.
THE OHS LAW
As in every other part of Canada, the OHS Act in Saskatchewan bans “discrimination,” i.e., retaliation or reprisals against employees for asserting their safety rights under the Act—in this case, asking the home to meet its OHS duty to protect employees from workplace bullying. The Act also gives employees the right to complain to a government safety officer if they think they’ve been a victim of discrimination/reprisal.
THE KEY QUESTION
Are employees even allowed to waive their discrimination protections and other safety rights under the OHS?
The Sask. Court of Appeal ruled that the nurse could waive her OHS protections in this case.
Employees can’t waive or contract out of OHS or other statutory rights designed to protect them if it would put them in danger or defeat the point of the law. So if on her first day on the job the nurse had signed an agreement releasing the home from its OHS obligations to protect her against bullying in exchange for a month’s salary, the agreement would have been unenforceable. But that’s not what happened. The nurse in this case signed the waiver after her employment ended and her safety was no longer at risk. At that point, her bargaining chip wasn’t a vital workplace safety protection but the right to sue her employer for not providing it to her after the fact. And that was a personal right that an employee did have the right to waive, the Court reasoned.
[Wieler v Saskatoon Convalescent Home, 2017 SKCA 90 (CanLII), Oct. 20, 2017]
You can’t and should never attempt to ask your employees to voluntarily give up their OHS protections, even if you provide them compensation or valuable consideration in exchange. Such agreements are not only enforceable but cast suspicion on the integrity of your OHS program and your organization’s commitment to OHS compliance and workplace health and safety.
However, the Wieler case suggests that it is permissible to include reprisal and other claims for failing to provide OHS protection during employment to the list of claims an employee agrees to release as part of a severance package.
Caveat: The question of individual waiver of OHS protections is a novel one that hasn’t been addressed in most other jurisdictions. Thus while it may have an influence in those other jurisdictions, the Wieler ruling is binding law only in Saskatchewan.