When a case is settled, it is commonplace to have the parties sign an agreement documenting the settlement terms. These “minutes” will typically detail certain non-monetary issues, which invariably will include a release and also a term of confidentiality as to the settlement terms and occasionally the very fact of settlement. The exact terms will vary, and often the agreement will state words to the effect that “the case has been settled to our mutual satisfaction”. This being said, it is an expected norm that the minutes will contain a mutual confidentiality provision.
Recent Review – The Terms
A recent arbitration decision concerns a possible breach of the confidentiality provisions contained within a settlement agreement. The individual in this case was employed in a unionized position, but the result which follows would likely apply in both an organized and non-union setting.
A tenured university professor was dismissed from his role for cause. He filed a grievance, which was settled between the parties in private mediation. The final minutes of settlement contained a statement that the grievance had been resolved “without any admission of liability or culpability by any of the parties”. The agreement also included the usual terms of confidentiality and contained a more precise term limiting public comments from either party to the simple fact that the matter had been resolved in mediation. A further term stated that “….it is an absolute condition of these Minutes that no term of these Minutes will be publicly disclosed”.
Soon after the ink was dry on the settlement, the professor appeared on social media, posting the following to his Twitter account:
“Vindicated former professor! Advocate for free speech and institutional transparency in universities”
In response to an inquiry as to the sum received, the professor posted:
“All I will say is that I left with a big grin on my face”
“I got the vindication that I was seeking. In other words, I have left the university on my terms, as opposed to the administration or the union’s terms”.
The parties subsequently appeared before the arbitrator, who concluded that the professor was in clear breach of the settlement terms. He cited the fact that the agreement was unambiguous, and that the professor had continued to breach the terms even after he had been directed to stop. He ordered that the employer was no longer required to honour the monetary payment. Other issues remain outstanding at this moment.
Employers’ and Employees’ Views
This decision really needs no admonition to either side of this dispute on a practical or philosophical basis. A deal is a deal.
On a similar issue, often the usual terms of a mediation agreement will contain a similar term of confidence as to the issues discussed, whether or not a settlement is reached.
Get Advice and Know Your Rights
If you have questions about this issue or any employment question, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416-364-9599 to schedule a consultation.
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