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Dec 6, 2012

Ontario worker’s settlement award reduced after Facebook posting

Worker’s Facebook comments revealed too much about settlement and violated confidentiality agreement, but employer still had to pay reduced amount
    
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An Ontario worker has had her award from a successful human rights complaint reduced after she revealed too much about her settlement on Facebook.

The worker had filed a complaint with the Ontario Human Rights Tribunal about her former employer and manager and was awarded an amount for damages on Sept. 13, 2011. As part of the settlement, both the worker and the employer signed a confidentiality agreement that prohibited revealing any details of the settlement to anyone “other than immediate family, legal or financial advisors, or as required by law.”

The day after the mediation, an assistant manager at the employer saw that the worker had posted messages about it on Facebook. One message was posted during the mediation and was a comment about the employer’s argument. Another, posted shortly after the settlement was reached, stated, “Well, court is done and didn’t get what I wanted but walked away with some…” A few hours later, another posting stated, “Well my mother always said something is better than nothing.”

The employer was concerned about the ramifications of these statements in the relatively small community of Cornwall, Ont., where it was located. It refused to pay the worker the money agreed to in the settlement and filed an application with the tribunal to have the settlement declared null and void due to the worker’s breach of the confidentiality agreement.

The worker argued she didn’t make any specific mention of the settlement in her Facebook postings and it was the employer who breached the settlement by not paying her the agreed-upon money. She also claimed Facebook was private, so it didn’t breach any confidentiality terms.

The tribunal found the timing and nature of the comments made it clear the worker was commenting on the settlement, and even though she didn’t disclose the amount, she revealed there was a monetary settlement. The tribunal also found Facebook wasn’t private, as indicated by the ease with which the employer found out about the comments.

However, the tribunal also found the employer’s failure to pay the settlement money was a breach of the agreement as well. It ruled the worker was still entitled to the money, but reduced the amount by $1,000 in recognition of the worker’s breach. The employer was also ordered to pay 1.3 per cent interest on the new amount for its delay in payment.

For more information see:

Tremblay v. 1168531 Ontario Inc., 2012 HRTO 1939 (Ont. Human Rights Trib.).
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