Lawsuit puts spotlight on confidentiality and non-disparagement clauses
A very public social media campaign against the Calgary Police Service (CPS) has resulted in a lawsuit against the HR director waging the attack; the CPS says she breached the conditions of her resignation agreement — including confidentiality and non-disparagement clauses; she says the agreement was “forced upon her”.
Does she have a leg to stand on? Not likely, according to employment lawyer Gary T. Clarke, partner at Stikeman Elliot in Calgary.
“That'll be ultimately for the court to decide, but if she is in breach of the provisions in her agreement by going to social media, then I think in the absence of legislation like the Prince Edward Island [Non-disclosure Agreements Act], I think it will be difficult for her to defend herself.”
Calgary Police Service’s former HR director’s public claims
CPS Chief Constable Mark Neufeld filed the suit on March 20, alleging that Angela Whitney, a former HR director who served in the role from 2019 to 2021, is in breach of the terms of her resignation which she signed when she left employment.
Whitney’s social media campaign started with a letter titled “Letter 1 of many to Calgarians,” that was posted on Feb. 24, 2024 and is now pinned to the top of her page on X.
@CalgaryPolice @CPS_Commission @cityofcalgary @JyotiGondek @ABDanielleSmith @ JOE BRAR @ MARK NEUFELD #abpoli #ableg #MeToo pic.twitter.com/AscEEehEcP
— Angela Whitney MBA, CPHR (@AngelaWhitney16) February 24, 2024
In many other posts on X and LinkedIn, Whitney continued to accuse CPS officers and “3 levels of leadership,” including senior management, of discrimination based on gender, bullying and other forms of misconduct towards herself, other staff members and even female citizens of Calgary.
Police commission announces third-party audit of CPS work culture
The statement of claim, which was provided to CTV News, said Whitney’s social media campaign against the CPS began on Feb. 8, 2024. It is seeking an order for Whitney to remove the existing posts.
A police commission meeting took place in Calgary last week, where both Neufeld and Whitney made comments.
“I think it's not uncommon for people to direct comments at the organization or the police chief and that's fine," Neufeld said to media and meeting attendants.
"I think what's really important though is that some of the remarks cast a really long shadow over the organization and the membership, so that's the part that's not okay, and so again, that's why I'm happy to see this get into a process that's sort of a constructive process where we can get to the meat of the matter and then move things forward."
Whitney provided her complete commission statement to CTV News, where she stated her aim was “to bring transparency and awareness to serious, systemic cultural issues at the CPS, in a sincere hope that a pathway for a safe workplace for the individuals who serve Calgarians can be achieved.”
CPS claims breach of resignation agreement
Whitney resigned from the CPS while on a medical leave of absence in June 2021, and the CPS proposed “standard confidentiality and non-disparagement clauses” as part of her resignation agreement – part of which meant she would not be allowed to file any legal claims against the CPS or make any public statements meant to “slander, defame or disparage” them.
She received a severance payment of over $60,000, the Herald reported, however the CPS is not seeking a monetary award from Whitney. It is seeking a permanent injunction preventing her from disparaging the CPS in the future.
The CPS is approaching the matter in the correct way by not commenting on social media, Clarke said, stressing that not litigating legal issues in the public eye is always best practice for HR professionals and employers.
“Other arguments that she could make against the settlement documentation are that she was coerced, or that there was a imbalance in bargaining power, she didn't have an opportunity to get independent legal advice,” he said.
Therefore, making non-disclosure and non-disparagement agreements as clear as possible is key, and allowing employees ample opportunity to review and understand what they are signing, even to the extent of paying for legal advice, is necessary, said Clarke.
“If they're given reasonable time to consider the document, then I think it'll be a difficult argument for them to make in most cases. … the key point really is, in the absence of legislation, a confidentiality agreement or a nondisclosure agreement would be enforceable,” he said.
“I think the courts are always mindful of the natural power imbalance that exists in most employment relationships, so there is an interest in leveling the playing field.”
CPHR code of conduct
In addition to the allegation of breaching her resignation contract, the CPS lawsuit against Whitney claims her public accusations “will have a chilling effect on employees' willingness to trust and participate in HR processes moving forward, thereby interfering with the CPS' ability to continue to modernize its HR processes."
"In addition to her obligations under the Resignation Proposal and Agreement, as an HR professional, Ms. Whitney owed the CPS common law duties to keep confidential all HR matters learned in the course of her employment."
As a member of the Chartered Professionals in Human Resources Alberta (CPHR), Whitney is responsible to uphold a code of conduct that includes confidentiality – responsibilities that are commensurate with the role of an HR director in a public service, said employment lawyer Walter Pavlic, partner at MLT Aikins in Edmonton.
“Issues like this, when there's been a breach of contract, the code of conduct is an overarching piece that always informs what the person that's subject to that code of conduct is expected to do,” he said. “If you're an HR professional, just like any other professional organization, if you're offside, your code of conduct in and of itself can be grounds for some sort of discipline.”
Letter 2 and 3 to Calgarians @CalgaryPolice @CPS_Commission #yyc #yyccc #OHS #WorkplaceViolence #victimrights #womensrights #ResignMarkNeufeld pic.twitter.com/XPfQ5sCr8F
— Angela Whitney MBA, CPHR (@AngelaWhitney16) March 9, 2024
HR director’s claims led to workplace culture audit of CPS
In response to Whitney’s claims, the Calgary police commission announced it will be ordering a third-party audit of CPS workplace culture.
Police commission chair Shawn Cornett said change to CPS culture, which has been accused of toxicity by employees and citizens alike, has been too slow, and this last allegation has provided the impetus to put the wheels in motion.
“The recent public allegations made by a former employee … raised serious concerns,” Cornett said in the Calgary Herald. “Our commission has been discussing this issue extensively over the past months and we recognize it’s time for a more fulsome evaluation of whether the actions taken to date are creating the desired change.”
Whitney’s tenure at the CPS ended three years ago, so discipline is not at issue. However, in cases where there are allegations of discrimination, bullying or harassment, HR directors are obligated to take action, Pavlic said.
“If you are the head of HR, and there's rumours or concerns, then you'd be expected to do something about it,” he said. “I don't know that it's a greater responsibility, I think it's a responsibility that goes with the position.”
