On the termination date the employee was told that he was fired
and called to an office. He was then presented with the termination
documents, which included a release, and pressured to sign that
day. He signed after about 15 minutes. The Court found
that while the employee "read" the termination documents,
he did not understand them. Further, it was found that the
employee could not have understood the consequences of the
release. The Court stated:
...The atmosphere during the termination meeting was tense
and awkward. The plaintiff was in shock he was being
terminated...To hold the plaintiff to the termination documents in
the circumstances would be unconscionable. Neither Mr. Pink nor Mr.
Davis explained any of the termination documents to the
plaintiff...It was a grossly unfair and improvident transaction.
The plaintiff received no legal or other suitable advice.
Ultimately, the circumstances and resulting stress of the
termination resulted in an imbalance in bargaining power and the
defendant knowingly took advantage of the plaintiff's
vulnerability to its advantage…The offer contained in the
termination documents was presented in a way that was directed to
getting the plaintiff to accept, and in a manner set to take
advantage of the plaintiff's vulnerability.
This case is a good reminder of a classic lesson: never let an
employee sign the release at the termination meeting. Never
ever. While it can be tempting, just don't do it.
An employer could be dealing with an employee who is eager to sign
a very generous package. Perhaps the employee knows that
he/she will find new work soon, making the package even more
generous. The employee may also be sophisticated and make
comments that quite obviously show that he/she understands the
situation and the fact that he/she will be releasing all of his/her
Don't be tempted. Our usual advice is to give the employee
between 1-2 weeks to consider the severance package and, barring
exceptional circumstances, not accept the returned release for at
least a few days after the termination meeting. While the
above case had some exceptional facts, it shows that accepting it
earlier creates a risk that it could be challenged on the basis of
unconscionability. This scenario may leave you in a costly
legal fight that could have been avoided with a little more
patience and good practice.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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