Canadian Employment Law Today

Canadian Employment Law Today Canadian Employment Law Today | | 3 Cases and Trends Cases and Trends Canadian HR Reporter, 2021 AN ONTARIO worker's discrimination com- plaint and attempt to invalidate a release in his termination package has been quashed by the Ontario Human Rights Tribunal. Louis Sterling was the manager of a Dol - larama retail store in Georgetown, Ont., hired in February 2017. Originally from Ja- maica, Sterling identifies as Black. According to Sterling, one day he ap- proached one of his subordinates to give her instructions and the employee threw her keys at him. He sent the employee home, but the employee was later called back to work by one of his superiors in manage - ment. This made him believe that his su- periors didn't believe him when he told them what the employee did because he was Black. The Dollarama district manager gave Sterling tasks that he felt would reasonably take one year to do, but the district manager wanted them completed within six weeks. He believed this was also due to the colour of his skin. Sterling reported incidents where em - ployees at his store and another store used racial slurs and an employee asked to be transferred to another store because she didn't like working for a Black store man- ager. He noted that he was the only Black store manager in his district and he received the lowest wages of all the store managers. On Nov. 24, 2017, Dollarama terminated Sterling's employment without cause. Dol - larama sent him a separation offer by email that said it would pay certain amounts of money greater than his entitlements un- der employment standards legislation if he signed a "full and final release" along with a non-disclosure clause. The offer also stated that the package was "inclusive of, and not in addition to, any benefits, allowances or obligations prescribed by law and is to be in full payment of such obligations, including any individual notice, termination pay and severance pay options." Employee eventually signed release The same day, Sterling told Dollarama that he was rejecting the offer and asked to be reinstated as store manager at another loca - tion. He also said that if Dollarama didn't reply within a week, he would contact the Ontario Ministry of Labour. However, Dol- larama didn't respond and Sterling accepted the offer. He signed the release — of which he later acknowledged he only read the front page but it contained a clause stating that Dollarama and its employees would be re - leased from "any claims under applicable employment standards or human rights leg- islation… or any employment-related legis- lation" — on Dec. 1. Dollarama then paid him in accordance with the separation offer. Sterling filed a claim of discrimination with respect to employment because of race, colour, ancestry, place of origin, citizenship and ethnic origin. He also claimed threat of reprisal and said that, although he signed the release, it should be voided because he signed it while under economic duress — he supported his wife and three children and had a mortgage and credit card debt, so he needed the money — and he didn't obtain independent legal advice before signing it as he didn't think he could afford it. The tribunal accepted that Sterling suf - fered "serious financial difficulties" from the loss of his employment but that "finan- cial difficulty alone is insufficient to estab- lish duress." There was no evidence that Dollarama applied any pressure on Sterling to sign the release and didn't contact him after it sent the release to him. This didn't meet the definition of duress — "any unlaw - ful threat or coercion used by a person to include another to act (or to refrain from acting) in a manner he or she otherwise would not or would." As a result, Sterling was under no economic duress to sign the release, said the tribunal. The tribunal also found that, although Sterling didn't seek legal advice, he had am - ple opportunity to do so. Dollarama gave him a full week to consider the offer and, if he had read the agreement and didn't un- derstand it, he should have consulted legal counsel before signing. "[Sterling] seems to have approached the separation offer in a somewhat cavalier manner in that he did not use the week to find out how much it would cost to obtain legal advice or even to read the document in its entirety," said the tribunal in finding that the release was in effect and precluded any legal action against Dollarama. Sterling's claim was dismissed as an abuse of the tribunal's process. For more information, see: • Sterling v. Dollarama LP, 2021 HRTO 183 (Ont. Human Rights Trib.). No evidence worker was under duress or didn't have opportunity to seek legal advice before signing document releasing employer of liability BY JEFFREY R. SMITH Ontario Human Rights Tribunal upholds legal release, dismisses complaint CREDIT: ARTEM KNIAZ iSTOCK CELT_Issue_30 MAY 5 FINAL.indd 3 CELT_Issue_30 MAY 5 FINAL.indd 3 4/21/2021 4:04:04 AM 4/21/2021 4:04:04 AM

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