The majority of employment disputes are resolved long before they ever reach a courtroom. Usually, the former employee will agree to accept a sum of money from their previous employer in exchange for executing a release agreement. While the substance of release agreements can vary, they generally share two similarities:
- No further liability: The individual agrees that upon receipt of an agreed payment, he/she shall have no further right to seek additional compensation as a result of their employment, or the termination thereof.
- Confidentiality: The individual agrees to keep the terms of settlement confidential.
Most organizations take very seriously the requirement that the individual maintain confidentiality in the terms of settlement. There a number of reasons for this which can include: limiting the sharing of information that may later be relied upon by other parties as a precedent as to what the employer would be expected to pay; and potentially undermining the legitimacy of an organization’s decisions, where the perception is that a dismissal for misconduct was later rewarded.
When an individual breaches the terms of a negotiated settlement, the employer may take steps to recoup the amounts paid to resolve the dispute (or refuse to issue payment). In a well-publicized recent case from Nova Scotia, a university professor learned this lesson the hard way.
The Acadia University case
In August 2018, Acadia University dismissed a tenured professor for cause. In response, the university’s faculty association filed grievances contesting the employee’s dismissal. The parties then attended a voluntary mediation on April 1, 2019, and reached a full and final settlement of the dispute. The parties executed Minutes confirming the negotiated terms of settlement (which the university, the faculty association and the employee each signed).
Amongst other things, the Minutes included the following language:
The grievance was resolved “without any admission of liability or culpability by any of the parties”
The parties agreed “to keep the terms of these Minutes strictly confidential except as required by law or to receive legal or financial advice”
“if asked, the parties will indicate that the matters in dispute proceeded to mediation and were resolved, and they will confine their remarks to this statement. Stated somewhat differently, it is an absolute condition of these Minutes that no term of these Minutes will be publicly disclosed.”
Shortly after the parties executed the Minutes, the employee took to social media, tweeting “vindicated former professor! Advocate for free speech and institutional transparency in universities.” One of the employee’s followers tweeted: “congrats Rick! Hope you got a nice sum monz.” [sic] In response, the employee tweeted: “All I will say is that I left with a big grin on my face.” Shortly after this, the employee also tweeted that “I got the vindication I was seeking. In other words, I have the left the university on my terms, as opposed to the administration or union’s terms.”
Upon becoming aware of these tweets, the faculty association’s legal counsel contacted the employee and advised him to immediately take them down. The employee refused to do so.
The parties then convened a hearing to address the employee’s alleged breach of the Minutes. In his written decision of May 24, 2019, arbitrator William Kaplan concluded that the university was no longer required to honour its payment provision as the employee had breached the Minutes in at least three ways:
As there had been no admission of liability or culpability by any party, there was no basis for the employee to claim “vindication.”
It was untrue to suggest that the employee had left the university “on his own terms.”
The employee referred to receiving a monetary payment with which he was pleased, contrary to the parties’ agreement to limit their comments regarding the Minutes.
Lessons for employers and employees
The Acadia University case is an important reminder to employers and employees to comply with negotiated terms of settlement. Accordingly, when seeking to resolve an employment dispute, parties should pay careful attention to the terms which are negotiated and, if necessary, seek clarification as to what may or may not subsequently be said or done. Moreover, while it may go without saying, individuals should be careful with the information that they choose to share on social media. This content has a high probability of coming to the attention of former employers, and even if later deleted, may have already been downloaded and thus be beyond your control.
For more information see:
- Acadia University v. Acadia University Faculty Association (May 24, 2019), W. Kaplan- Arb. (Ont. Arb.).
Paul Willetts is a founding partner of Vey Willetts LLP, an Ottawa-based employment and labour law boutique. He can be reached at 1-800-296-7989 or firstname.lastname@example.org.