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Former Employee’s Facebook Post about Settlement Breached Confidentiality Provision in Settlement Agreement: Tribunal Reduced Employee’s Monetary Award

Trish-Ann Tremblay had entered into a settlement agreement with her former employer, 1168531 Ontario Inc., on September 13, 2011, with respect to the Human Rights Application she had filed against 1168531 Ontario Inc.. The settlement agreement contained a standard confidentiality provision requiring parties to maintain the confidentiality of the terms of the Minutes of Settlement.

The next day after the mediation, Ms. Amy Lalonde, manager with the Respondent Company, was informed by a colleague that Ms. Tremblay had posted messages on Facebook about the mediation and settlement. In fact, the first message was posted during the mediation session itself:

“Sitting in court now and _______ is feeding them a bunch of bull shit. I don’t care but I’m not leaving here without my money…lol”.

After the Minutes of Settlement were signed, Ms. Tremblay posted the next message as follows:

“Well court is done didn’t get what I wanted but I still walked away with some…”

Shortly thereafter Ms. Tremblay posted the following message:

“Well my mother always said something is better than nothing…thank you so much saphir for coming today…”

While Ms. Tremblay argued that there was no proof that she was talking about the Respondents as she did not mention them by name, the Tribunal held that it was clear from the date of the postings and the comments made that she was referring to the mediation. The Tribunal found that Ms. Tremblay had breached the confidentiality provision of the Minutes of Settlement. However, the Tribunal found that the Respondent Company had also breached the Minutes of Settlement by not paying Ms. Tremblay the settlement amount.

The Tribunal ultimately ordered that the amount owing to Ms. Tremblay under the settlement agreement be reduced by $1,000. In determining the appropriate remedy, the Tribunal took into account that Ms. Tremblay did not disclose the amount of the monetary settlement in her Facebook posts. The Tribunal also considered the relatively public nature of Facebook, especially in the small community in which the applicant and respondent company resided.

When mediating issues of a sensitive nature, employers should consider including confidentiality provisions in settlement agreements that specifically prohibit disclosing terms of settlement on social media sites, including Facebook, Twitter, LinkedIn, etc.

Tremblay v. 1168531 Ontario Inc., 2012 HRTO 1939 (CanLII)

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Former Employee’s Facebook Post about Settlement Breached Confidentiality Provision in Settlement Agreement: Tribunal Reduced Employee’s Monetary Award

Employee Denied Damages for Failure to Return to Work When Called Back

Earl Chevalier was employed by Active Green + Ross for 33 years and was a service centre manager for 18 of those years. On October 28, 2008, he was notified that he was being temporarily laid off from his job at the end of the month. When Mr. Chevalier later commenced an action for wrongful dismissal, his employer called back stating that it had acted under the mistaken belief that it could lay off Mr. Chevalier. Mr. Chevalier however refused to return to work and decided to continue with this litigation.

The Ontario Superior Court of Justice held that Mr. Chevalier was constructively dismissed when he was laid off by Active Green + Ross on October 28, 2008. Accordingly, he was entitled to notice in the range of 18 to 24 months. However, the Court found that Mr. Chevalier failed to mitigate his damages when he refused to return to work.

Where the employer offers the employee a chance to mitigate damages by returning to work for him or her, the central issue is whether a reasonable person would accept the offer to return to work. However, the employee would not be obliged to mitigate by working in an atmosphere of hostility, embarrassment or humiliation.

Mr. Chevalier claimed that management had engaged in conduct intended to “make his life miserable” in order to cause him to leave his employment. The conduct alleged by Mr. Chevalier included unfair criticism of his work, treating him in a demeaning fashion and ignoring his contractual rights by requiring him to work in Toronto more the 50 kilometres from home.

The Court found that Mr. Chevalier appeared to be very bitter about his experience and as a result the significance of various incidents covered in his evidence became magnified and distorted in his mind over time.

Mr. Chevalier was failing to meet performance goals and comply with company policies particularly on customer service. As a result, more senior managers frequently provided him training and assistance in order to improve. It was also clear from Mr. Chevalier’s employment agreement that he would be expected to travel as part of his job. Mr. Chevalier was reassigned because of the poor performance of his branch to another location where management hoped that Mr. Chevalier would be more effective. He would be working at a busier location with another manager who was considered to have been successful in carrying out the company’s operating procedures.

The Court held that the employer’s conduct was directed toward making Mr. Chevalier a more effective contributor as an employee of Active Green + Ross rather than making his life miserable so that he would leave the company. The Court concluded that a reasonable person would have returned to work and therefore Mr. Chevalier had acted unreasonably when he refused to return to work. As such, he had failed to mitigate his damages, and was thus not entitled to any damages.

For a copy of decision in Chevalier v. Active Tire & Auto Centre Inc., 2012 ONSC 4309, please visit: http://canlii.ca/t/fs4p6

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Employee Denied Damages for Failure to Return to Work When Called Back

Faster Movement of Men up Pay Ladder not Remedied by Pay Equity Act

On May 31, 2012 the Ontario Divisional Court ruled that the Pay Equity Act does not require the harmonization of wage grids as long as female employees achieve the same level of pay as men at the top of the grid. The Canadian Union of Public Employees (CUPE) appealed decisions by the Pay Equity Tribunal with respect to two Ontario employers: Lakeridge Health Corporation and the York Region District School Board. At both of these employers, it was found that workers belonging to the male dominated job class moved more quickly (nearly three times as fast) through pay levels than the workers belonging to the female dominated job class. The comparison was between the mostly male service workers versus the female dominated clerical staff.

In coming to its decision, the Divisional Court found that although the union argued that the fundamental objective of the Act is to “eliminate” gender discrimination in compensation, it would be more accurate to say that the purpose of the Act is to “redress” systemic wage discrimination in accordance with the detailed provisions of the legislative scheme.

The Court went on to state that “within that legislative scheme, the Legislature has made a number of choices about how pay equity is to be achieved…with the result that the Act does not contemplate the elimination of all discrepancies between comparably-valued male and female job classes.” At least one discrepancy that the Act does not contemplate addressing, as found in this case, is the time it takes to reach the highest rate of pay for men and women in comparable jobs. It has yet to be known whether this case will be appealed by CUPE.

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Faster Movement of Men up Pay Ladder not Remedied by Pay Equity Act