In Watson v Salvation Army ( 2018 CarswellOnt 2916) Justice Gordon had a situation where the Plaintiff was suing her former manager for sexual harrassment after having previously settled with her former employer and signed a Release which said as follows:
“This release of claims shall include any claims against anyone or any organization in any way related to or connected with my employment or ending of my employment.”
The Judge found that this did not protect the former manager even though these events occurred at work because ” sexual harassment, intimidation and other improper conduct are not connected to employment . This are clearly separate items ”
How to avoid this outcome ?
The Judge said ” specific language to such claims would need to be added to the Release to bar the present claim”.
Does this mean that every employment release must mention sexual harassment, sexual assault etc ? What about racial discrimination, physical assault, or generalized harassment ? Are these also ” not connected to employment “?
Does this mean that she could go back and again sue the Salvation Army for vicarious liability for the sexual harassment that she endured from her former boss?
I think the Judge got this wrong.
Of course sexual harassment is ” connected with employment” insofar as it exists in most cases because of the employment relationship, especially like in this case where it is the boss harassing an subordinate.
That is why making a sexual advance to a subordinate in the workplace is qualitatively different than making a sexual overture to a stranger in a bar.
Sexual harassment is all about the power that derives from the inherent power imbalance in the workplace.
One gets the feeling that the Judge didn’t want the former manager to get the benefit of the very low settlement ( $10,000) negotiated between the Army and the Plaintiff. At the time of her settlement the manager was still in the Army’s employ. I am sure that the Army intended at that time that this settlement would cover all their employees, including the manager.
If the Plaintiff wanted to settle with her employer but not her harasser, she could have negotiated a carve out in the Release. In my experience that would have resulted in no settlement.
Settlements and releases are essential to resolving employment disputes. The only thing that the employer is buying is peace. Allowing releases to be set aside for anything other than fraud or misreresentaion will have a negative effect on resolving future employment disputes.