THE EMPLOYERS' EDGE
Employee’s Facebook Updates Breach Confidential Minutes of Settlement
Tremblay v. 1168531 Ontario Inc. is yet another example of an employee paying the price for foolish use of social media.
Facts
The employee reached and signed a settlement with her employer after engaging in the mediation process at the Human Rights Tribunal of Ontario. The employee’s settlement contained the following provision:
The Applicant and the Respondent agree to maintain confidentiality of the terms of these Minutes of Settlement, and shall not discuss or disclose the terms of the settlement with anyone other than immediate family, or legal or financial advisors, or as required by law.
Despite the provision the employee commented on the mediation and the settlement on Facebook. Specifically, during the mediation the employee wrote:
“Sitting in Court now and ______ [blank in original posting] is feeding them a bunch of bull shit. I don’t care but I’m not leaving here without my money…lol.”
Further, after the Minutes of Settlement were signed the employee wrote:
“Well court is done didn’t get what I wanted but I still walked away with some…”
“Well my mother always said something is better than nothing… thank you so much saphir for coming today…”
The next day the manager of the corporate respondent found out through the assistant manager about the Facebook postings then printed out the content and informed the owner of the business. The owner was troubled by what he felt was a breach of the confidentiality provision as he had stated at the Tribunal that confidentiality was important to him and particularly so in the small community which the employer operated. Further, the owner stated concerns related to the reputation of his business and that others might believe filing an application or suing the company was “easy”.
The corporate respondent did not pay the settlement funds to the employee and submitted that the breach rendered the settlement null and void thereby relieving the employer of any obligation to pay the employee.
Tribunal’s Findings
The Tribunal found that it was clear that the employee breached the confidentiality provision of the Minutes of Settlement. The fact that the employee did not disclose the amount was not relevant to the determination that there was a breach. The tribunal cited Saunders v. Toronto Standard Condominium Corp No 1571, for the position that:
A contravention of a settlement can undermine the administration of justice by discrediting the human rights system and generating wrong disincentives to negotiation. The uncertainty created by a contravention of settlement potentially undermines substantive and procedural provisions of the [Human Rights] Code.
Further, the Tribunal acknowledged that many settlements would no doubt not be finalized if the employer could not be assured that no liability or blame could be attributed to it and the settlements would be of little utility of they were not kept confidential.
The Tribunal did not have any cases from the Human Rights Tribunal to rely on where a breach of confidentiality was found but considered the extent and content of the breach when determining the remedy. Specifically, the Tribunal considered that the employee did not disclose the amount of money but also acknowledged the public nature of Facebook, the ease with which the employer discovered the posting and the small community in which the business operated.
Ultimately, the Tribunal determined that under the circumstances the failure to pay was an understandable reaction by the unrepresented employer but that it would be required to pay 1.3% interest on the amount owing from the date of the decision minus a $1,000.00 reduction to the amount owing to the employee for her breach of the confidentiality provision.
Significance for Employers
It would have been preferable for employers if the Tribunal voided the settlement in its entirety and eliminated any payment owing. Nevertheless, it is difficult to assess the adequacy of the $1,000.00 reduction to the settlement funds owing without knowing the original settlement amount
Despite the above, employers should find utility in this decision as there is now precedent from the Tribunal finding an employee to have breached the confidential Minutes of Settlement and language from the Tribunal that suggests it is vitally important to uphold the confidentiality of these settlements.
For other CCP blog’s related to an employee’s misuse of social networking view:
Social Networking Trips Up Another Employee: Discharge Upheld for Gross Insubordination and Threats Made by Postal Employee in Facebook Posts
Facebook Firings
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.