The City of Oshawa is being sued for breach of confidentiality, breach of contract and invasion of privacy after information about a former employee’s dismissal was leaked on social media, sparking wide spread public debate about the employee’s character, actions and professionalism.
According to public reports, the City of Oshawa’s Real Estate Manager was terminated after for two years employment, during which he was involved in the controversial purchase of a new works depot for the City. The purchase was the subject of much public controversy, scandal, investigation, and speculation.
After his termination in May 2013, the former Real Estate Manager reached a settlement with the City about the terms of his termination. The Agreement included a confidentiality clause, requiring confidentiality on matters related to his employment and the settlement.
An email was sent to Counselors and senior staff advising them not to discuss the termination of “a staff member in the Real Estate division” and noting that the position of Real Estate Manager would not be filled. The email ended up being posted on Facebook.
Although the email did not name the former employee, he was identifiable by the reference to his position. Subsequent comments on Facebook by the public specifically named him.
The former employee has now filed a lawsuit alleging breach of contract, negligence, breach of confidentiality, and damages related to a new Ontario common law tort, invasion of privacy or intrusion on seclusion. He is seeking over $1,000,000 in damages.
The lawsuit also claims against “John Doe” the employee or elected official who leaked the information. The former employee claims the City knows who it is. For more details, see the news story here.
The City has not yet field a defence to the lawsuit.
What this means to you
While this lawsuit is in its infancy, it is cause for concern for employers:
- Information related to an employee’s departure must be kept confidential: particularly if there is settlement agreement with a confidentiality clause. Courts will uphold these clauses. An Ontario court recently found that confidentiality clauses can cover more than just the dollar amount of the settlement. A former employee who publicized the details of her departure, but not the dollar amount of the settlement she was given, was ordered to re-pay her settlement.
- An employer may be held responsible for the actions of its employees or agents: if confidential information about an employee is leaked, the employer may be held responsible, regardless of whether the individual who leaked the information had the authority to do so or not.
- Publicizing an employee’s departure information may also be a breach of privacy: in 2012, the Ontario Court of Appeal recognized a new common law tort, invasion of privacy or intrusion on seclusion. We wrote about this tort in a Client Update if want to know more about it. As with all torts, an employer can be held vicariously liable if its employee or agent commits the tort of intrusion on seclusion.
- Once something is up on social media, the poster loses control but may be held accountable for the results: The former employee’s lawsuit is claiming the City is responsible for disparaging comments made by members of the public who commented on the email. It may never have been the intention of “John Doe” to put the City at risk when he leaked the email, but it remains to be seen whether the courts will hold the City responsible for the public commentary or not. In the mean time, it is advisable that all employers have social media policies that, among other things, prohibit employees from disclosing confidential Company information online.