“This case really causes you to stop and think about these provisions,” says Janice Rubin of Rubin Thomlinson LLP. “It comes up all the time when you’re in a mediation or talking to a client and reviewing minutes of settlement or release — you put these things in agreements and hope for the best.”
Last week, the decision by arbitrator Louisa Davie came down after Wong’s former employer objected to a book she wrote about her battle with the newspaper and depression — Out of the Blue — as well as some things said in social media and in media interviews when the book was released. The amount Wong must repay has not been disclosed.
“It’s an unusual decision; you don’t see one of these every day,” says Rubin.
Because there is limited case law on this kind of issue, Rubin says people who have signed confidentiality agreements may say things about their settlement after the fact and don’t believe what they’ve said actually violates the confidentiality provisions.
In her book, Wong was quoted as saying she received “a big pile of money to go away” and made comments about winning against her employer in the dispute.
Rubin says the decision from the arbitrator may, in fact, mean discussions around confidentiality agreements become more detailed to include making any comments about how the individual prevailed.
“I think what it will change is the amount of energy devoted to that provision and perhaps we’ll see provisions that are more explicit than the standard provision,” says Rubin. “You can expect in a typical employment dispute a confidentiality agreement where money is going from one party to another, but I think what might be included in an agreement would be more expansive.”
She adds that could include wording such as “for greater certainty this provision means that you cannot disclose the fact the matter is settled, cannot disclose the monetary amount paid to you; cannot disclose your view as to whether you were treated fairly or not.”
In certain circumstances the fact there is a confidentiality provision is an enticement into entering into an agreement, even an agreement where the employer may be paying a premium.
“In exchange the matter will be settled and the cone of silence descends and we’re done,” says Rubin. “If you have a party not prepared to honour that provision it really undermines the rationale of the entire agreement.”
Social media has also brought another element to such clauses. In October 2012, a decision of the Human Rights Tribunal of Ontario, Tremblay v. 1168531 Ontario Inc., involved an employee of a fast-food restaurant, Trish-Ann Tremblay, who made Facebook postings during a mediation. The posts included a reference to the settlement agreement. The individual was ordered to pay back the settlement in the amount of $1,000.
“When we represent employers of someone who is known to be very active on social media, or if we know somebody who has talked a lot about the case even before we get to mediation the feeling is this person is going to be at greater risk for breaching confidentiality terms than others,” she says. “Someone well connected in the media or with a public persona the assessment would probably also be at a higher risk.”
There are other cases where repayment of a settlement was ordered in a breach of confidentiality situation but in a relatively small amount. In Ontario Public Service Employees Union v. Ministry of Attorney General an employee was ordered to repay $1,000.
The other possible outcome of the Wong decision is it may prompt employers to take a stronger position if they suspect a terminated employee has breached a confidentiality provision but they weren’t sure whether to pursue it further.
The Globe and Mail is reportedly donating the repayment of Wong’s settlement to the Centre for Addiction and Mental Health in Toronto.
For more read “Navigating the minefield of workplace depression.”