Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2016 Canadian Employment Law Today | 3 Cases and Trends Claims of duress, misrepresentation not enough to invalidate signed release Financial concerns normal outcome of termination; employee had opportunity to review release and seek advice BY RONALD MINKEN CONSIDERABLE stress and emotion sur- rounds the termination process — for both employees and their employers. During times of economic downturn, many em- ployers face the tough decision of having to cut back on their number of employees. When presented with a termination pack- age, even a generous one, most employees are understandably upset and worried about their economic futures. Many employees feel pressured to sign off on their termina- tion package prior to the deadline provided to ensure there is no interruption of income over the notice period being offered. But what happens when an employee decides after signing the release that the only reason she did so was due to inaccurate informa- tion provided by the employer at the time of termination, as well as stress over finances? In a decision released Aug. 24, 2016 — Nicastro v. Tenaris Algoma Tubes Inc. — the Ontario Human Rights Tribunal dealt with this issue. Jacqueline Nicastro filed a human rights application alleging discrimination on the basis of age and disability, despite pre- viously signing a release in exchange for a 12-month termination package. Nicastro was terminated by her employer, Tenaris Algoma Tubes, in 2014 after 14 years of service as part of a reduction of the em- ployer's workforce across Canada. Tenaris began reducing its workforce in 2013 and continued this process into 2015, reduc- ing its total employees from approximately 1,400 in 2011 to 550 by December 2015. When presenting Nicastro with her ter- mination package, the company informed her that she was "the first of many to be ter- minated and that 12 months is pretty good." Nicastro negotiated an extension of benefits due to ongoing medical issues but did not negotiate any other terms. ere was no dis- cussion as to what would happen if Nicastro did not sign the release by the date required, nor did Nicastro request an extension of the deadline. In fact, despite being upset by the termination, Nicastro signed the release four days prior to the deadline out of fear that if she did not sign off, there would be a delay in payment of the termination package. Nicastro did not have the termination package reviewed by a lawyer prior to ac- cepting it as she was experiencing a financial crunch with university tuition payments due for her children. When Nicastro later discov- ered that she was the only employee termi- nated at that time, she felt that she had been deliberately misled — though Tenaris did terminate many employees and significantly reduced its workforce again eight months af- ter Nicastro's termination. Nicastro filed an application seeking damages for discrimina- tion on the basis of age and disability. e tribunal's vice-chair determined that there was insufficient evidence to establish that the release should be invalidated on the basis of economic duress or misrepresenta- tion. Although Nicastro was upset by the termination and experiencing a financial crunch as well as arthritis, the vice-chair determined she was not forced to accept the termination package and sign the re- lease. ere was no improper conduct by Tenaris in the timeframe provided to Nica- stro to accept the termination package, nor did Tenaris suggest that she would not be provided with her statutory minimums if she did not accept by the deadline. Nicastro did not request an extension of the dead- line or negotiate the terms of the package other than the benefits. Further, Nicastro's health was not a barrier to her ability to un- derstand or appreciate the implications of signing the release. Regarding the claim of misrepresentation, the vice chair determined that Tenaris did not deliberately mislead Nicastro or induce her into signing the release. Tenaris did ter- minate other employees prior to Nicastro's termination and in the following months, and had drastically reduced its workforce by December 2015. As a result, the release was upheld and Nicastro's application was dismissed. Lessons for employees While many employees experience emo- tional and financial distress when they are terminated, this is not always enough for a signed release to later be deemed invalid. When presented with a termination pack- age and release, employees must carefully review the terms prior to signing — once the release is signed, it is difficult to have it overturned. Employees should not be afraid to ask questions of their employers, includ- ing requesting an extension of the deadline so that proper legal advice can be obtained and consideration given. Further, typically a deliberate intention by the employer to deceive the employee and induce the em- ployee into signing the release based on un- true information is required to have a signed release declared invalid on the basis of mis- representation. Lessons for employers Employers should be careful in their deal- ings with employees during the termina- tion process, both in their actions and com- munications, to avoid claims of duress and misrepresentation. Employers should not put undue pressure on employees to accept termination packages and sign releases. Employers should provide their employees with a reasonable period of time to have the documents reviewed and should be open for requests for extensions of the deadlines where reasonable. Employers should also be careful about the information provided to employees regarding the reason for termi- nation and when answering questions asked by their staff to avoid claims of misrepresen- tation. For more information see: •Nicastro v. Tenaris Algoma Tubes Inc., 2016 HRTO 1128 (Ont. Human Rights Trib.) ABOUT THE AUTHOR RONALD S. MINKEN Ronald S. Minken is a senior lawyer and mediator at Minken Employment Lawyers, an employment law boutique in Markham, Ont. He can be reached at www.MinkenEmploymentLawyers.ca. Ron gratefully acknowledges Sara Kauder, Kyle Burgis and Gillian Fahy for their assistance in preparation of this article.

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