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25 September 2019
The question of what happens if an employee boasts about their settlement details online is key, as confidentiality is a key benefit of most settlement agreements.
In Acadia University v Acadia University Faculty Association (2019 CanLII 47957) the arbitrator, Kaplan, found that the employer need not pay the agreed settlement funds because the grievor's tweets breached the settlement's confidentiality provisions. This case illustrates the importance of including a confidentiality provision in settlement agreements.
The Acadia University Faculty Association filed grievances following the termination for cause of a tenured professor. Following negotiations, the parties voluntarily entered into a settlement.
The settlement terms stated that the grievances were resolved without any admission of liability by the parties. The settlement also stated that the grievor was to keep the terms confidential. The only statement that could be publicly made was that the grievances had gone to mediation and been resolved.
After signing the settlement, the professor began tweeting about it. Specifically, he tweeted that he was a "vindicated former professor". In response, one of his followers tweeted "congrats… Hope you got a nice sum monz". The professor responded: "All I will say is that I left with a big grin on my face". The professor also tweeted about leaving the university on his own terms because he "got the vindication that [he] was seeking".
The employer asked the arbitrator to decide whether the confidentiality provision had been breached. The arbitrator ordered the professor to delete portions of his tweets and to strictly comply with the settlement. Following this order, the professor continued to tweet about his severance pay being withheld.
The professor clearly violated the settlement. The only real issue was the consequence of these breaches. After explaining that settlements in labour law are sacrosanct, Kaplan decided that the university did not have to pay the agreed settlement funds. He noted that the settlement had been made without admission of liability or culpability and that the terms of settlement were to be kept confidential. By use of the terms 'vindicated' and 'severance', the tweets suggested that there had been an acknowledgment of wrongdoing or liability by the university, which was expressly not the case. As a result, Kaplan held that the university was no longer obliged to pay the settlement funds.
This case is an important reminder of the significance of confidentiality in the settlement of labour disputes. Part of the incentive to enter a settlement is that the agreement is confidential and the parties can maintain their positions without setting a precedent for any future disputes.
Settlement agreements should contain clear and unequivocal confidentiality provisions. Employers should take steps to enforce those provisions where comments are made that breach them. While the ultimate penalty to be imposed will be up to the decision maker with whom the breach has been raised, this case suggests that non-payment of funds is a proper remedy for a severe confidentiality breach.
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