A Filipino foreign worker in Israel filed a lawsuit claiming that he worked as a caretaker for a person who had a severe stroke for 16 years until the demise of his employer and he was employed 7 days a week, without receiving vacation or rest days. After the end of his employment, a settlement of accounts was held with him and he confirmed by signing a waiver in the English language, that he received all rights due to him, based to the data he himself gave to his lawyer. Can he later withdraw the waiver after consulting with another lawyer and was convinced that he deserves additional rights?
Generally, a future right of claim may be waived, either mutually or unilaterally, and the waiver may be in a separate document (e.g., upon termination of employment or as a condition for receiving insurance payments) or as a clause in an agreement (e.g., within the standard agreements with financial institutions or banks). In a matter discussed in the Israeli Supreme Court in September 2003, with regards to a waiver clause in a settlement agreement between a bank and its customer, the client contended that it was signed due to economic duress. The Court held that because the arrangement benefits to the client, he may not retroactively withdraw from the waiver, which was mutual and also included risk-taking on the part of the bank and thus both parties did a cost-benefit analysis. As always, interpretation is subjective and when it comes to interpretation of a waiver, interpretation issues may be material because a waiver may seem beneficial at a time but later, when one can no longer file a claim, it may suddenly seem less beneficial. Thus, it is important to formulate the waiver in a manner that will make it difficult to attack in the future.
However, there are cases where it is possible to withdraw from a waiver. For example, in case of a contractual defect in the entering into the waiver and in certain cases unique to waivers. Thus, for example, generally, only rights that already exist at the time of the waiver may be waived, but not future rights, because the meaning of such a waiver is jeopardizing the right of access to Courts and other constitutional rights of the waiving party. In addition, a waiver shall not apply in the case of fraud. Nevertheless, in a case discussed in the Economic Department of the Tel Aviv District Court in March, 2016, where parties to an investment agreement set that the investor may only sue for certain representations, the Court refused to accept a claim alleging fraud that concerned representations that were not included in the agreement due to a waiver clause. The Court held that the waiving party conducted a cost-benefit analysis when it chose to include certain representations in the agreement and waived the inclusion of others. In a case discussed by the Supreme Court in December, 2019, a woman executed a very broad waiver, waiving any possible cause of action, including future causes of claim. In retrospect, it turned out that the woman had been given misleading information when she executed the document and the Court held that she would not have assumed the risk had she known that she was relying on misleading information and therefore deemed the waiver invalid.
Similarly, in a case from November, 2024, in the Tel Aviv Labor Court, the facts of which are described at the beginning of this article, it was held that in order for an employee's waiver to be valid, it is required that the waived rights were known to him, the employee was given a clear and comprehensible account of the amounts before signing the waiver; and the waiver is clear and unambiguous. In that case, the Court held that the waiver signed in the English language complied with the requirements and is binding.
In conclusion, the world of waivers is a complex one, especially when it comes to waiving a right of claim. Therefore, before executing an agreement that includes a waiver clause or a separate waiver, it is important to consult with a lawyer with expertise in the contracts and commercial fields, who will know how to draft the waiver in a manner that best aligns with the interests of his client and minimizes the need to initiate legal proceedings related to it.