Saskatoon nurse signed form after being informed of termination
The Saskatchewan Labour Relations Board has upheld a ruling that a worker could not file an occupational health and safety complaint related to harassment after signing a release preventing such a claim.
Barbara Wieler was a registered nurse and assistant director of care at the Saskatoon Convalescent Home (SCH) in Saskatchewan. Wieler was hired in 2008 and had worked with the Saskatoon Health Region since 1999.
Wieler was appointed to the assistant director position in August 2012, which had a six-month probationary period.
Soon after Wieler began her new position, she raised concerns to SCH about what she considered "longstanding bullying and intimidation by the management team" and unsafe staffing levels in the nursing department she felt could lead to injuries.
Dismissal came soon after OHS complaints
SCH did not proceed with Wieler’s claims and, in mid-January 2013, the administrator/director of care told Wieler just before she went on vacation that she wanted to decide whether Wieler was able to do the job and if Wieler wanted it.
When Wieler returned from vacation on Jan. 29, she was told she wasn’t a fit for the organization and she was being terminated. The employee was given a termination letter stating she would receive one month’s pay and benefits, providing she signed it and a release form. The release form stated Wieler would not make any claim or action against SCH related to her employment or termination.
Wieler returned the signed forms one month later, on Feb. 24, 2013.
Soon after, Wieler filed a complaint to the harassment prevention unit of OHS claiming discriminatory action with relation to her termination.
An OHS officer denied the claim on the grounds she had signed the release in which she agreed not to make any claim or action against SCH, leaving him without jurisdiction to consider the claim.
Wieler appealed the decision, arguing the OHS group ignored the serious health and safety concerns she raised. She also claimed she was unaware of her rights under occupational health and safety legislation when she signed the release and, regardless, the OHS group had a duty to investigate potential breaches of occupational health and safety legislation.
Signed release precluded further legal action: Adjudicator
An adjudicator agreed with the OHS officer’s decision that the release Wieler signed barred her from making an OHS complaint, though it didn’t necessarily mean the OHS officer didn’t have jurisdiction.
Wieler once again appealed – this time to the Saskatchewan Labour Relations Board – arguing the adjudicator made an error in law. She argued a complaint under the Occupational Health and Safety Act, 1993, was a right that couldn’t be waived or varied by a release as there was no provision in the act allowing for an officer to remove himself from having jurisdiction.
Once a complaint is made under the legislation, it must be investigated and an OHS officer must accept jurisdiction to make a decision on a complaint, said Wieler.
The board determined the standard of review for such a claim of an error in law regarding the OHS act was that of correctness. The board noted Wieler’s complaint about the OHS officer not accepting jurisdiction was essentially part of the argument against the adjudicator’s decision that the release was what prevented the complaint, and combined the issue into one item for consideration.
The board also noted the OHS act fell within the class of "public interest legislation" that could not be waived or varied by private contract.
However, the board referred to the 1999 Alberta Court of Queen’s Bench decision Chow v. Mobil Oil Canada which determined a release was not a case of contracting out of future rights provided for in "social legislation" but rather was related to past acts of discrimination and was part of a settlement of a complaint of those past acts.
"(The judge in Chow) also held that the release is simply an agreement to abandon a right to pursue a complaint in exchange for money or other consideration," said the board.
"He also held that the giving of a release does not offend the provisions of the Human Rights Act because it does not have the prospective effect of limiting or reducing rights during the course of future employment and does not deal with the rights of employees generally."
The board found there was no challenge to the validity or enforceability of the release and consideration was given. As a result, it determined the adjudicator was correct in finding the release prevented Wieler from seeking additional relief under the OHS act with relation to her termination of employment.
Wieler’s appeal was dismissed.
For more information see:
Wieler and Saskatoon Convalescent Home, Re, 2014 CarswellSask 718 (Sask. Lab. Rel. Bd.).
Chow v. Mobil Oil Canada, [1999] 12 W.W.R. 373, 17 Admin L. R. (3rd) 108 (Alta. Q.B.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.
