When employers negotiate a settlement with a union providing for
payment to an employee, there is often a concern with respect to
confidentiality of the settlement. In most cases, the employer
wants the settlement terms to be confidential. One of the reasons
for a confidentiality agreement is to ensure that the settlement
does not encourage claims by other employees who may think that the
employer will make substantial payments just to get rid of a
grievance. Enforcement of the confidentiality provisions in
settlements is critical; there's not much point in having a
confidentiality provision if there is no effective way to enforce
it. The arbitration decision in Globe and Mail v. Jan Wong
[2013 OLAA No. 273] shows that there is a very effective way to
keep settlements with a union confidential.
Jan Wong worked for the Globe and Mail for many years.
She was represented by the Communications, Energy and Paperworkers
Union of Canada. When the Globe and Mail terminated her
employment, the union filed a grievance claiming that there was no
proper cause for the termination.
The union and the employer negotiated a settlement of the
grievance. Under the settlement, the Globe and Mail made a
payment to Ms. Wong. The settlement agreement provided in paragraph
6 that "the parties agree not to disclose the terms of the
settlement ... to anyone other than their legal or financial
advisors, Manulife and the Grievor's immediate
The settlement agreement further provided that:
"should the Grievor breach the obligations set out in
paragraph 5 and 6 above, (the arbitrator) shall remain seized to
determine if there is a breach and, if she so finds, the grievor
will have an obligation to pay back to the Employer all payments
paid to the Grievor under paragraph 3."
Jan Wong then wrote a book called Out of the Blue about
her experience with depression and the termination of her
employment at the Globe and Mail. In her book, she made
the following references to the settlement that the union had
negotiated on her behalf:
"I can't disclose the amount of money I
"I'd just been paid a pile of money to go
"Two weeks later a big fat check (sic) landed in my
"Even with a vastly swollen bank account ... "
As a result of those statements, the Globe and Mail
claimed that there had been a breach of confidentiality, and Ms.
Wong should repay all of the settlement money that she had
Jan Wong said that she thought she could disclose that she had
received a payment as part of the settlement as long as she
didn't disclose the amount of the payment.
The arbitrator noted that the confidentiality agreement required
that the parties not disclose "the terms of this
settlement" and that one of the terms of the settlement was
that Ms. Wong received a payment from the employer. Accordingly,
even though the amount of the payment had not been disclosed, the
fact that a payment had been made was disclosed and that
constituted a breach of the confidentiality agreement.
The arbitrator ordered Ms. Wong to repay the Globe and
Mail all the money that she had received.
This case illustrates that a properly drafted confidentiality
provision in a grievance settlement provides an effective and
enforceable deterrent to improper disclosure.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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