Confidentiality is a key benefit of most settlement agreements. What happens if an employee boasts online about the details of a settlement? In Acadia University v Acadia University Faculty Association, 2019 CanLII 47957, Arbitrator Kaplan found that an employer did not have to pay the agreed settlement funds because tweets by the Grievor breached the confidentiality provisions of the settlement. This case illustrates the importance of including a confidentiality provision in a settlement agreement.
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 went to mediation and were resolved.
After signing the settlement, the professor began tweeting about his settlement. 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.
What did the Arbitrator Decide?
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", Arbitrator Kaplan decided the university did not have to pay the agreed settlement funds. He noted that the settlement was 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 was an acknowledgment of wrongdoing or liability by the university, which was expressly not the case. As a result, Arbitrator Kaplan held that the university was no longer obligated 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 are able to 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 those provisions. While the ultimate penalty to be imposed will be up to the decision maker with whom the breach is raised, this case suggests that non-payment of funds is a proper remedy for a severe confidentiality breach.