The relationship between social media and confidentiality in the workplace is a gray area for many employers. These social media sites are public. Confidentiality agreements are put in place to provide clarity on issues regarding what employees post online.
Tremblay v 1168531 Ontario Inc., 2012 HRTO 1939
In 2012, a decision made by the Ontario Human Rights Tribunal found that an employee’s multiple Facebook posts regarding her settlement breached a confidentiality provision of a settlement agreement. The employee alleged that the employer breached the settlement by refusing to pay the amount owing under the settlement. The employer then filed an application for contravention of settlement that alleged the employee breached confidentiality in the settlement agreement by posting comments on Facebook about the court case.
The employee’s postings online were comments regarding receiving money after mediation. One post stated, “Sitting in court now and _______ [blank in original posting] is feeding them a bunch of bullshit. I don’t care but I’m not leaving here without my money…lol.”. The employee also posted, “Well court is done didn’t get what I wanted but still walked away with some…”.
After the mediation, the employer was informed of these Facebook posts. After seeing the comments, the employer chose not to give the employee the amount agreed to during the settlement. The employee did not deny that she posted the comments on Facebook but argued that there was no proof that she was talking about her employer and because she did not specify an amount there was no breech of the settlement.
The Tribunal agreed the employee did breach the confidentiality provision of the settlement. The Tribunal also found that Facebook is public. However, the employer still owed the amount agreed to during the settlement, plus interest due to the delay in paying the settlement amount.
Takeaways from This Case
1.The courts will find Facebook to be public when handling issues of the online posting of settlement details.
2.When faced with a breach of any provision of a settlement agreement, do not take matters into your own hands. In the above case, delaying payment left the employer worse off as the employer was ordered to pay the settlement amount, plus interest.
3.Courts and tribunals will strictly enforce confidentiality provisions, even when a breach is considered trivial. Employers and employees alike are susceptible to potential claims for breaches of confidentiality.