In a decision released last month, the Ontario Human Rights Tribunal reduced the amount that an employer was required to pay to settle a human rights case in order to compensate for the fact that the employee posted comments about the settlement on Facebook.
Trish-Ann Tremblay and her employer, a fast food franchise in Cornwall, Ontario, attended mediation and settled Ms. Tremblay’s human rights complaint (see Tremblay v. 1168531 Ontario Inc.). The agreement contained a confidentiality provision because of the employer’s concern that others might be inclined to bring similar claims if word got out. Upon returning from the mediation, the employer was made aware that Ms. Tremblay had posted three comments about the settlement on Facebook. Specifically, she posted the following:
Sitting in court now…I don’t care but I’m not leaving here without my money…lol
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…
The first post was made while the mediation was in session and the subsequent posts were made after the session and after the agreement was signed. The employer refused to pay the settlement funds, alleging that Ms. Tremblay had breached the confidentiality term of the settlement agreement. Both parties applied to the Ontario Human Rights Tribunal (the “Tribunal”) for assistance in resolving their dispute.
Ms. Tremblay admitted posting the comments but argued that there was no proof that she was talking about the employer since she did not mention them by name. She further submitted that she had not mentioned the amount of the settlement in her posts. Finally, she argued that Facebook was private.
The Tribunal found that Ms. Tremblay had breached the confidentiality terms with her posts. The employer was ordered to pay the settlement amount that had been withheld (along with interest), but the Tribunal held that there should be a $1,000 reduction in the settlement amount to compensate the employer for Ms. Tremblay’s breach of confidentiality.
Lessons for Employers
- Confidentiality matters.
While this decision represents the Tribunal’s first finding of a breach of confidentiality, it reminds parties of the importance of respecting the confidentiality provision in a settlement agreement. The Tribunal recognized that the agreement to maintain confidentiality often serves as a powerful incentive for employers to resolve disputes.
- Facebook posts are not necessarily private.
The Tribunal’s ruling shows that confidentiality now extends to the realm of social media, where parties should no longer assume unlimited privacy. The Tribunal rejected the argument that Ms. Tremblay’s Facebook posts were private in this case due to the ease with which they were discovered and viewed. However, this finding does not justify attempts by employers to access and use comments made on forums (including Facebook) that are not publicly available.
- Even general comments may be a breach.
The Tribunal held that it did not matter that Ms. Tremblay had not disclosed the amount of the settlement in her posts – the fact that she revealed in her posts that she was not leaving without money and that a settlement had subsequently been reached was sufficient to constitute a breach. It was further noted that communication of the amount would have increased the severity of the breach.
- Consider updating settlement document language.
The Tribunal rightly noted that the problem with breaches such as this is that “it is impossible to reinstate confidentiality”. The advantage of social media is that we may now be able to prove when breaches occur (whereas in the past it was very difficult to track down a confidentiality breach made by word of mouth). Also, the Ontario Human Rights Code makes statutory provision for the Tribunal to award a remedy like a reduction in the settlement. In wrongful dismissal cases, this same statutory protection does not apply. As a result, there is a definite benefit for employers in including specific language in settlement and/or release documents which makes clear that the employee may not communicate online regarding the settlement and what may be the consequences of any such breach.
In accordance with the Tremblay decision, we have updated our releases here at RT LLP to provide protection for social media confidentiality breaches and we invite you to contact us to prepare similar revisions for your organization.