Ontario worker named employer, co-worker; must pay back settlement payment
A worker must pay back what they received in a settlement of a sex discrimination complaint after posting too much information about the settlement on social media, the Ontario Human Rights Tribunal has ruled.
The decision is a good precedent for employers in showing that at such a settlement in a human rights complaint can stand up if the employee breaches confidentiality and other clauses, says Barry Fisher of Barry Fisher Arbitration and Mediation in Toronto.
“The existence of confidentiality and non-disparagement clauses are extremely common [in settlement agreements],” says Fisher. “If you found out that somebody was fired and received money you wouldn't be surprised, but in this case, because of the sex discrimination, it was heightened.”
The worker filed an application alleging sex discrimination under the Ontario Human Rights Code, by both her employer and a co-worker.
During the complaint process, the worker posted on LinkedIn that she had filed a human rights complaint against the employer and the co-worker for sex discrimination, naming both.
Settlement included confidentiality clause
The parties engaged in mediation and, on June 7, 2019, they settled the matter. The worker, the co-worker, and the employer signed a minutes of settlement (MOS) document that included confidentiality and mutual non-disparagement clauses.
The confidentiality clause stated that the worker could disclose the terms of the settlement to their immediate family and their legal and financial advisors, as long as those people agreed to maintain strict confidentiality. If anyone inquired about the worker’s human rights application, she was required to say that “all matters have been resolved” with no mention or allusion to receiving any money.
The non-disparagement clause stipulated that the parties agreed not to make “any oral, written or electronic communications about each other that are untrue, defamatory, disparaging, or derogatory, or acting in any manner that would be likely to damage the opposite party’s reputation in the eyes of customers, regulators, the general public, or employees, unless required by law.” The clause specifically included social media such as Facebook, Twitter, Instagram, YouTube, and Snapchat.
The MOS stated that if the worker breached any of the settlement’s obligations, particularly the confidentiality and non-disparagement clauses, they would be required to pay back the settlement payment they received from the employer as liquidated damages. The worker would also be responsible for any additional damages incurred by the employer in the event of a breach.
In the fall of 2019, the worker replaced the statement in her LinkedIn biography, in the “about” section, with the following: “To all those inquiring, I have to a resolution in my Human Rights Complaint against [the employer] and [the co-worker] for sex discrimination.”
Employer requested removal of social media post
One year later, the employer and the co-worker discovered the statement still on the worker’s LinkedIn profile. On Sept. 21, 2020, they asked the worker to remove the statement, but the worker didn’t respond. About one month later, the worker revised the statement slightly to “To all those inquiring, all matters have been resolved in my Human Rights Complaint against [the employer] and [the co-worker] for sex discrimination.”
The employer and the co-worker filed an application with the tribunal alleging that the worker contravened the MOS. The worker subsequently removed the statement from her LinkedIn profile.
The worker maintained that they did not breach the confidentiality provision of the MOS. They argued that the original discrimination application was well known, they were informing those who were inquiring that the application had come to a resolution, and MOS included permission for the worker to respond to queries by saying “all matters are resolved.”
The worker also claimed that the MOS didn’t limit how an “inquiry by any person” could be made, it was harmless to say there was some form of resolution, and they posted true and objective facts using language specified in the MOS.
The worker claimed that they didn’t respond to the September 2020 letter because they would see that she changed the post. The worker also said that they needed something to account for the time gap on her CV following the discriminatory dismissal.
Settlement payment
The tribunal also noted that the worker received a settlement payment for agreeing to a full and final release, confidentiality, non-disparagement, and specific consequences if the worker breached the MOS. The exception to the confidentiality terms was that the worker could disclose the terms to immediate family and advisors if they also agreed to maintain confidentiality, while the non-disparagement clause explicitly referenced social media in the prohibition on doing anything that could damage another party’s reputation, the tribunal said.
The tribunal found that the worker’s LinkedIn post expanded upon the confidentiality exception by referring to sex discrimination and including the names of the employer and the co-worker. This additional information wasn’t neutral or harmless, as it linked sex discrimination with the other parties on social media, which could cause “serious reputational damage,” said the tribunal, adding that MOS’ express reference to the specific phrase “all matters have been resolved” was to the exclusion of any other information about the settlement.
“The confidentiality clause said, ‘Upon inquiry by any person about the resolution of the application’ - in other words, if someone asked her, she could respond that way, but instead she just publicly announced to everybody that there was a settlement,” says Fisher.
As for the non-disparagement clause, the intention was clearly to avoid reputational damage that could flow from “a perceived taint associated with allegations of discrimination and sex discrimination,” the tribunal said. However, putting the information the worker did on social media publicized it and created a reputationally damaging link between the employer, the co-worker, and “the serious unproven allegations of human rights violation of sex discrimination,” said the tribunal, noting that when the worker was asked to take the post down, they kept the names of the employer and the co-worker along with the reference to sex discrimination. The change was superficial and showed “a blatant disregard” for the interests of the other parties, the tribunal added.
“Referencing the fact that [the worker] settled their sex discrimination lawsuit with the company is itself disparaging, because the average person would see a connection between those two – this [worker’s] saying a little more than just the result,” says Fisher. “If she had whispered to a friend or something, things might be different, but publication on social media, people are going to read that - in fact, if you typed in the name of the employer, that would probably come up on a Google search - so it was an especially outrageous breach of the settlement agreement.”
Proceeding was public, settlement was not
The tribunal noted that the worker explained that the statement was intended to account for the gap in her employment history, but they put it in the “about” section of their profile rather than in the timeline section, and including the names of the employer and the co-worker wouldn’t be necessary for that purpose.
The tribunal also found that, while the human rights complaint was a public proceeding that many already knew about, the mediation and settlement were not and the MOS prohibited the worker from providing details about the private settlement.
The tribunal determined that the worker breached both the confidentiality clause and the non-disparagement clause of the MOS with her LinkedIn post. It noted that proof of damages wasn’t required in assessing the penalty because “the harm is understood in the loss of the bargain.”
Since the MOS provided for a return of the settlement payment in the event of a breach and the remedy for a breach of contract is to put the applicant in the position they would have been in had the breach not occurred, the worker was ordered to pay back the settlement payment.
Fisher finds it interesting that the tribunal upheld the clause forfeiting the settlement payment.
“And [the tribunal] further concluded that it's impossible to put dollar figure on [damages from the breach], and [the forfeiture of the settlement payment] is what the parties decided on,” he adds
The tribunal’s enforcement of the MOS clauses is important for employers, according to Fisher.
“Settlements are sacred, we live by settlements, so I'm always in favour of enforcing settlements because our whole system would collapse If we didn't enforce settlements,” he says. “I’m not surprised that the tribunal looked at it strictly - if word gets out that you can sign an agreement and then weasel out of it, we will never settle anything.”
