Settlement confirmed

Employment standards tribunal confirms settlement despite claim of misrepresentation

After 12 years of employment with the company, Yee Fun Chan was terminated from her employment with Screen Graphics Production Ltd. on Feb. 4, 2000, without notice or termination pay. Ms. Chan alleged that she was terminated because she was pregnant, so shortly thereafter she filed a claim for termination pay and vacation pay against Screen Graphics with the Ontario Ministry of Labour.

An employment standards officer investigated Ms. Chan’s claim. Following an investigation, the officer refused to issue an order to pay in favour of Ms. Chan. Ms. Chan appealed the decision.

In May 2000 Screen Graphics Productions and Ms. Chan reached a settlement whereby Ms. Chan would receive $4,659.20. As a result of the settlement, both the company and the Ministry of Labour took the position that all matters in dispute between Ms. Chan and Screen Graphics were resolved. They argued that the review of the employment standards officer therefore should be dismissed.

Ms. Chan argued that the settlement was only in respect of the termination part of her initial claim and that she was misled into signing the settlement. She wanted a hearing to proceed on the remaining issue concerning her pregnancy and subsequent termination.

To determine what the settlement was intended to resolve, the Ontario Labour Relations Board heard evidence as to the settlement discussions. It was Ms. Chan’s position that she attended the meeting with a friend, Ms. Eva Wong, who was introduced to the employment standards officer, Ms. Bernard-Harris, as her interpreter. Ms. Chan stated that Ms. Bernard-Harris refused to let Ms. Wong participate in the hearings because she was neither Ms. Chan’s spouse nor her lawyer. As a result, Ms. Wong sat outside the meeting room.

Ms. Bernard-Harris gave different evidence. She stated that Ms. Wong was introduced to her as Ms. Chan’s friend and support. It was not suggested to her that Ms. Wong was there to act as interpreter. Once the discussions reached the stage of settlement discussion, Ms. Wong was summoned to the meeting room and actively participated in the communications of the settlement offer. Ms. Wong and Ms. Chan discussed the offer in Cantonese and they were also provided an opportunity to discuss the offer in private.

The main area of dispute between Ms. Chan and Ms. Bernard-Harris’ evidence related to what happened in the meeting prior to Ms. Wong being invited to participate. The officer had questions put to her as to her opinion of the merits of the claim. She expressed doubt about the validity of the claim in respect of whether Ms. Chan had been dismissed due to pregnancy. Ms. Chan stated that the reason given by the officer for this opinion was that termination due to pregnancy is not governed by the act and she was referred to the human rights commission. Ms. Bernard-Harris testified that she made no reference to unborn children and that she made it clear that she thought Ms. Chan’s dismissal claim lacked merit because the employer did not know of the pregnancy when it terminated Ms. Chan. Ms. Bernard-Harris did form an opinion that the claim could succeed in respect of termination pay which led to the employer offering to settle.

Ms. Bernard-Harris further testified that she made it clear to Ms. Chan that, by signing the document, the applicant was agreeing to full and final settlement of the claim and that the file would be closed. She also gave Ms. Chan the opportunity to think matters over before signing. Ms. Chan did not take that opportunity as she was anxious to finalize the settlement. She signed the settlement authorization that same day.

Based on the evidence of Ms. Chan, Ms. Bernard-Harris and Ms. Wong, the board found that Ms. Wong participated in the meeting and assisted Ms. Chan in reviewing the terms of the settlement offer by the employer. The board further held that Ms. Chan was not misled by the officer concerning the act’s application to her claim for dismissal due to pregnancy.

Although Ms. Chan felt that she had been misled into signing the agreement, the board did not agree. Whether she misunderstood the significance of signing her name to the settlement or regretted her action in having done so, the board did not interfere with the finding. She had the opportunity to discuss the settlement with Ms. Wong and was given the option of thinking things over before signing. Parties to an agreement are entitled to finality and the board would not interfere in the negotiated settlement.

For more information:

Chan v. Screen Graphic Productions Ltd., Ontario Labour Relations Board, Docket No. 34002419, Aug. 15/01.

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