[1985] OLRB Rep. March 372
1887-84-U Mohamed El Sherif, Complainant, V. C. E. Jamieson & Co. (Dominion) Limited, Respondent, v. Energy and Chemical Workers Union, Intervener
BEFORE: N. B. Satterfield, Vice-Chairman, and Board Members I. M. Stamp and H. Kobryn.
APPEARANCES: Mark R. Steffes and Amita M. Sudfor the complainant; D. S. Jovanovic and A. Fantin for the respondent,' Daniel Ublansky for the intervener.
DECISION OF THE BOARD; March 7, 1985
This is a complaint filed under section 89 of the Labour Relations Act in which the complainant, Mohamed El Sherif, has alleged that his employer, the respondent C. E. Jamieson & Co. (Dominion) Limited, has violated sections 64, 66 and 71 of the Act by discharging the complainant from his employment. By way of relief, the complainant seeks to be reinstated in his employment and to be compensated for all lost wages, benefits and gratuities, including interest thereon.
Sherif alleges that he was discharged on or about May 25, 1984 because of his involvement with the intervener Energy and Chemical Workers Union ("the union") following its certification by this Board, but before the union had completed a collective agreement with the employer. The complaint as filed states that Sherif approached the union but the union failed to file a grievance on his behalf. The complaint states further: "On or about June 25, 1984, the Complainant signed a final Release without independent legal advice and without being informed of its contents. The Complainant through economic duress was left with no alternative but to execute the Release in order to obtain badly needed funds without knowledge that it was a Release". It is unclear on the face of the complaint whether the word "grievance" is used in the sense of a grievance under a collective agreement or whether it has been used in the sense of a complaint filed under the Act. In any event, it is obvious that the union, whether asked to file a complaint or not, is not the complainant in this action. It did file an intervention and was represented by counsel throughout the proceedings. Counsel chose not to lead any evidence directly or through cross-examination of witnesses and made no representations on the evidence.
The respondent filed a reply to the complaint and in schedule "A" made written submissions which read in part as follows:
"7. Discussions concerning the termination of the Complainant's employment took place between the solicitor for the Respondent and a representative of the Ministry of Labour, Employment Standards Branch, on the 21st and 22nd day of June, 1984.
The solicitor for the Respondent was informed by the Ministry of Labour representative on the 22nd day of June, 1984, that the Complainant was prepared to settle the matter of the termination of his employment with the Respondent by signing a full and final release in return for an amount equivalent to two weeks pay.
The Complainant attended at the offices of the solicitor for the Respondent on the 25th day of June, 1984, and accepted a cheque for the agreed upon settlement and signed a release as he had been advised to do by the Ministry of Labour representative and was given a copy of the said release at that time.
The Respondent states that the Complainant was fully aware of the contents and effect of the release prior to executing the same. A copy of the release is attached hereto.
The Respondent denies the allegations of economic duress as set out in the Complaint."
The written submissions conclude with the following statement:
"16. The Respondent therefore submits that this Complaint ought to be prima facie dismissed by reason of a settlement having been reached by the parties, or, in the alternative, ought to be dismissed on the merits."
The complaint was filed October 16, 1984 and was first listed to be heard on November 28, 1984. It was adjourned without hearing on consent of the parties and came on for hearing on January 14, 1985. At the commencement of the hearing, the parties advised the Board that they had agreed that the Board should deal with the single issue of the effect of the alleged release on the processing of the complaint. Accordingly, this decision deals with that single issue.
The Board heard the testimony of Sherif, Ken Pessa and James N. Bartlet, Q.C. Pessa is a former employee of the employer who was discharged at the same time as Sherif. The Board does not have before it the testimony of the Employment Standards Officer who was the Ministry of Labour representative referred to in schedule "A" of the employer's reply. The officer was present at the hearing and employer counsel sought to have the officer testify after Bartlet's examination had been completed. The Board heard the submissions of counsel for Sherif and the employer respecting whether the officer was a competent or compellable witness having regard to section 45(3) of the Employment Standards Act. Intervener counsel made no submissions. Section 45(3) of the Employment Standards Act provides as follows:
"No employment standards officer is a competent or compellable witness in a civil suit or proceeding respecting any information, material or statements acquired, furnished, obtained, made or received under the powers conferred under this Act except for the purposes of carrying out his duties under this Act."
The Board adjourned to consider the submissions of counsel and, for brief reasons given orally in the hearing, it ruled that the officer had been acting on behalf of Sherif in dealing with a complaint alleging that he had been discharged without notice contrary to the Employment Standards Act. Thus, the officer was acting pursuant to powers conferred under that Act and was entitled to the protection of section 45(3). Accordingly, the Board declined to compel the officer to testify in the proceedings.
- The following facts are not in dispute:
(1) Sherif was employed by the employer as a laboratory chemist from April 24, 1981 to May 25, 1984. He was discharged effective May 25, 1984 by means of a letter to that effect from his employer bearing that date.
(2) On the same day that he received the letter, Sherif took it to the Windsor office of the Employment Standards Branch of the Ministry of Labour and complained about his discharge. An Employment Standards Officer intervened on Sherifs behalf with the employer.
(3) As a result of the officer's intervention, the employer instructed its solicitors to contact the officer. James N. Bartlet, Q.C., a senior partner of the employer's solicitors, subsequently engaged in several telephone conversations with the officer. As a consequence of those conversations, Bartlet arranged through the officer to have the complainant attend at the solicitors' offices on Monday, June 25, 1984. In anticipation of that appointment, the employer prepared a cheque payable to Sherif for a sum of money agreed upon by Bartlet, on behalf of the employer, and the officer. A release for the payment of that same sum of money and a letter on the employer's letterhead were also prepared. The letter bears the date June 22, 1984, is addressed to whom it may concern and states: "Mr. Mohamed El Sherif was employed as a laboratory chemist from April 24, 1981 to May 25, 1984".
(4) The complainant came to the solicitors' offices as arranged, received the cheque and the letter, signed the release and received a copy of it. He did not read the release before signing.
(5) The release, and consideration of the payment of $443.28, which represents the payment of a sum of $520.00 less statutory deductions for Canada Pension Plan and Federal Income Tax purports to: ". . . release and forever discharge C. E. JAMIESON & CO. (DOMINION) LIMITED, its successors and assigns, from any and all actions, causes of actions, claims and demands, for damages, loss or injury, howsoever arising, which heretofore may have been or may hereafter be sustained by me for or by reason of any cause, matter or thing existing up to the date hereof, and more particularly, without limiting the generality of the foregoing, with respect to any claim relating to my employment by C. E. Jamieson & Co. (Dominion) Limited, and the termination thereof."
The Board also makes the following findings of fact from the testimony of Sherif, Pessa and Bartlet having regard to their recollection of the events about which they were testifying, the firmness of their recall, their ability to relate clearly to the Board the events and matters about which they were testifying, their ability to resist the influence of self-interest, and their general demeanour as witnesses.
When Bartlet contacted the Employment Standards Officer, he was advised by the officer that, in the officer's opinion, the employer's discharge letter did not reveal cause for discharge which would extinguish the employer's obligation under the Employment Standards Act to give Sherif two weeks notice of his termination, or pay in lieu thereof. As a result of this and subsequent conversations with the officer, Bartlet obtained from the employer detailed sums of payment respecting two weeks salary, the vacation pay thereon, the statutory deductions to be made, and supplied this information to the officer. It was Bartlet's understanding from these conversations that Sherif was prepared to accept these payments and the letter from his employer respecting the duration of his employment as full discharge of any claims against the employer. Bartlet understood further that Sherif was prepared to sign a full and final release on receipt of these items. It was this understanding which caused him to have the employer prepare the cheque and letter for him, to have the release prepared, and to make the arrangements with the officer to have Sherif come to Bartlet's offices.
Sherif kept the appointment on June 25th. When he met with Bartlet he was shown the cheque and the letter, and given the opportunity to check them over. He indicated to Bartlet that they were satisfactory. Next Bartlet showed him the release. Sherif indicated twice to Bartlet that he was prepared to sign the release. Bartlet cautioned Sherif twice that it was a final release of all claims against the employer. With the first caution, he told Sherif that he wanted him to read the release before signing it. The second one was given after Sherif had appeared to glance briefly at the release and repeated his query of where he should sign it. This time Bartlet told him that he would have no further claim against the employer once he signed the release. Bartlet's caution to Sherif did not go so far as to volunteer a detailed explanation of the wording of the release. The Board is satisfied on the evidence of both Sherif and Bartlet that Sherif signed the release without first reading it. After he did so, Sherif was given a copy of the release together with the cheque and letter, at which time the meeting ended and he left.
Sherif denied that he had asked the officer to obtain for him the letter about the duration of his employment, that the officer had told him he would have to sign the release of all claims against the employer or that he had told the officer that he was prepared to sign a full and final release. In fact, throughout his cross-examination, Sherif insisted that he thought he was merely signing a receipt for two weeks pay when he signed the release. At the very end of his cross-examination, he admitted knowing that he was going to have to sign a release in order to obtain the payment. He denied knowledge that it would be a complete release of all claims against the employer.
Counsel for Sherif argues that there are several grounds for setting aside the release insofar as it might be seen by the Board as a bar to inquiring into the present complaint. These grounds are that Sherif was clearly entitled pursuant to the Employment Standards Act to the payment received and was under no obligation to sign a release of any kind in order to receive it; that he did not have independent legal advice before signing the release; that it is reasonable to conclude that in his circumstances, being without employment income and wishing to bring separate suit for unlawful discharge, Sherirs release against all claims in consideration of the sum paid is not reasonable, and that he would have received such advice from independent legal counsel; that his circumstances made him economically subservient to the employer; and that his lack of independent legal advice coupled with his poor understanding of English created an unequal bargaining position. Counsel argued that the Board, on the evidence before it, could characterize Sherifs situation in two ways: either his knowledge of English was inadequate and he was incapable of understanding both Bartlet's instructions to read the release, and the consequences of signing the release and, as a result he believed he was merely signing a receipt for the cheque; or he failed to understand the gravity of Bartlet's caution, because Bartlet simply cautioned him to read the release and failed to explain that the release would bar any further claim against the employer. In other words, Sherif failed to understand that the release might affect any other claims he wanted to pursue against the employer. Furthermore, counsel argued, Sherif had been instructed by the Employment Standards Officer to go to Bartlet's office in order to collect the money in question and he went there for that single purpose, unprepared for the situation which confronted him. On these grounds, counsel argued that the Board should set aside the release insofar as it purports to have any effect other than to bar him from claiming the same payment again.
Sherif's counsel cited a number of cases where the Courts, in civil suits dealing with releases, have set aside a release, wholly or in part. Counsel is not relying on the cases for their facts, which he acknowledged might well be distinguishable from the facts before the Board. Rather, he relies on them to show what factors the Courts have considered when dealing with releases.
The question of what effect, if any, the release has on this complaint raises, as the Board sees it, an issue of whether the Board's discretion under section 89(4) of the Act should be exercised. The Board is without jurisdiction to set the release aside either wholly or in part. Section 89(4) states as follows:
“Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this Act and where the Board is satisfied that an employer, employers' organization, trade union, council of trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the employer, employers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting the generality of the foregoing may include, notwithstanding the provisions of any collective agreement, any one or more of,
(a) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to cease doing the act or acts complained of;
(b) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to rectify the act or acts complained of; or
(c) an order to reinstate in employment or hire the person or employee concerned, with or without compensation, or to compensate in lieu of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employers' organization, trade union, council of trade unions, employee or other person jointly or severally."
The Board is not possessed of the Court's equitable jurisdiction. Our discretion to hear a complaint, however, empowers us to ignore the release insofar as it purports to enjoin Sherif from proceeding with this complaint. The question is whether this discretion should be exercised with the Court's equitable principles in mind.
The Board has in past upheld a release as a bar to a complaint. In Empire Public House [1973] OLRB Rep. April 181, the Board upheld a release as barring an unfair labour practice complaint, noting that the complainant had not been misled in signing; the employer had not exercised undue influence; and the complainant was fully aware of the consequences of his actions. It is not clear from the decision which, if any, of the factors was of the greatest importance. It is clear from the cases cited to us, however, that the Courts have been concerned with the equality of bargaining power. The Courts appear to have been unwilling to uphold similar such agreements where the dominant party has taken advantage of its position to extract favourable terms.
The bargaining relationship between employer and employee is an inherently unequal one. The Act is geared toward redressing this imbalance, and this is a relevant factor for the Board to consider in determining whether to exercise its discretion to hear a complaint. Therefore, the Board thinks it appropriate to ask whether it is reasonable to refuse to hear Sherif's complaint because of the release which he signed in the circumstances in evidence here.
The evidence establishes that the release came about through Sherif's efforts when he contacted Employment Standards immediately upon his termination. When, as a result of that contact, the Employment Standards Officer intervened with the employer on Sherif's behalf to press a claim for termination pay in lieu of notice, the officer's several conversations with Bartlet led to the employer making an offer to Sherif of two weeks' pay in return for Sherif's full and complete release of any further claims. The employer's offer was conveyed by Bartlet to the officer. The Board has no reason whatsoever to disbelieve Bartlet's evidence that the officer told him Sherif had agreed to sign the release in return for the two weeks' pay and the letter. What the Board does not know is whether the officer told Sherif the conditions attached to the payment and obtained Sherif's acceptance of those conditions. The Board has no doubt, however, that Sherif knew and understood why he was going to see Bartlet and that he would have to sign a release before he would receive the cheque for two weeks' pay. The Board finds, therefore, that Sherif knew and understood prior to meeting Bartlet what the purpose of the meeting was, in other words, to sign a release as a condition of receiving the cheque for two weeks' pay. Since he was not represented by counsel during the negotiations over the payment or at the final meeting with Bartlet, it is relevant to ask whether he understood the effects of his actions.
The Board had the opportunity to observe Sherif as he testified and, based on his demeanour and his evidence, the Board has no difficulty in concluding that he is sufficiently proficient in understanding written and spoken English to have been able to read and understand the release when it was presented to him and to understand what Bartlet said to him. The Board does not accept his testimony that he did not read it because he thought he was merely signing a receipt for the cheque. For reasons not revealed to the Board, even though Sherif had been duly cautioned by Bartlet that he would have no further cause of action against the employer once he signed the release, Sherif signed the release without reading it. Had he taken heed from Bartlet's caution and read the release before signing it, the Board is satisfied that, as a minimum, he would have understood that he was agreeing to release C. E. Jamieson & Co. (Dominion) Limited from " . . . any and all . . . claims and demands, for damages, . . . with respect to any claim relating to my employment".
The above finding does not determine the present issue, however. The employer's conduct is equally relevant because of the unequal nature of the bargaining relationship. In the circumstances of this case, however, the Board does not find that the employer has taken advantage of its superior bargaining position. It simply responded to Sherif's initiative and settled the matter, He received two weeks' pay where he might have received none had the employer refused and successfully advanced the defense that he had been fired for reasons which did not require the employer to give notice of termination or pay in lieu thereof. The agreement ts not, prima facie, an unfair one. It was executed nearly four months prior to Sherif's decision to file the instant complaint. There is neither any allegation nor any evidence before the Board that the employer intended to preclude the complaint. It is true that Bartlet could have gone further; he could have read and explained the release to Sherif. Nevertheless, in all the circumstances, the Board is of the view that Sherif was not treated unfairly in that he did understand from Bartlet's caution that he would have no further claim against the employer once he signed the release. Therefore, the Board is satisfied that Sherif understood the document to be a release from all actions arising out of his employment with the employer. Furthermore, he would have had the same understanding of its effect had he read the release before signing it. He cannot now take advantage of his failure to read it. Therefore, it is reasonable for the Board to refuse to hear Sherif's complaint because of the release.
For all of the foregoing reasons, we decline to exercise our discretion to hear the complaint. The complaint is, accordingly, dismissed.