Post Script: This post was originally published on October 27, 2014, the day after the Ghomeshi story broke and before we knew the extent of Ghomeshi’s behaviour and that women had come forward, and before criminal charges had been laid against him for sexual assault and choking. In the days that followed, the facts that came out paint a much more disturbing pattern of on-duty and off-duty conduct by Ghomeshi. His grievance is still alive, but he has an uphill battle in that case due to the clear connection between his behaviour and the employer’s legitimate repetitional and business interests.
Published October 27, 2014
My Twitter account was abuzz with notifications yesterday with discussion and questions about the law of dismissal. As a rep hockey coach, I of course was at hockey rinks most of the day and had no idea what was going on. A quick check of the newspaper websites disclosed the source of the scuttlebutt. Popular CBC radio host Jian Ghomeshi had apparently been fired for some sort of behaviour relating to a kinky and violent sex life. As of Sunday afternoon, most of the details about that conduct had come from Ghomeshi himself, or at least his PR firm, in the form of an extraordinary Facebook post in which he alleged some jilted ex was threatening to go public with details of their sex life and falsely allege that it was not consensual. This morning, the Toronto Star published a piece with some more details, this time with information from multiple woman who claim to have had the pleasure of being smacked around and strangled by Ghomeshi. No one but Ghomeshi and the women involved know for sure what happened, so we can only speculate. As always when the facts have not been tested in a trial or hearing, we can’t be sure what really happened. We can only consider the legal issues that likely arise, based on what we know so far.
For lawyers and work law students, an interesting part of the story was the curious two-pronged legal strategy Ghomeshi and his people claimed they would be pursuing in response to the dismissal.
1. The Collective Agreement Termination Grievance
First, since Ghomeshi is unionized, he intends to file a grievance under the collective agreement for unjust dismissal. That is to be expected. A unionized employee cannot file a wrongful dismissal lawsuit in court. Wrongful dismissal is a lawsuit filed by a nonunion employee which alleges that their employment contract was terminated without them having been given the amount of notice required by the contract. A nonunion employer can fire an employee, for any or no reason at all, as long as they give notice. The only exceptions are: (1) if the contract includes some form of “cause” requirement,
requiring the employer to have a reason to fire the employee; or (2) the reason for the termination violates a statute, such as human rights prohibitions on discrimination. However, a unionized employee cannot be fired for no reason by the giving of notice. The CBC needs to have “just cause” to fire Ghomeshi, because (I presume) the collective agreement that applies to him says it must.
I have not read the specific collective agreement that governs Ghomeshi, so I am going to assume that it includes similar provisions on termination to most other Canadian agreements, though if you know otherwise, let me know. A commenter suggested its possible Ghomeshi has a separate individual contract that governs parts of this dispute, like pro athletes are governed by both a collective agreement between the sports union and the league and an individual contact with the team that employs him. What follows assumes that a normal just cause provision applies to the CBC decision to terminate Ghomeshi.
Usually, a grievance will enter the grievance procedure set down in the collective agreement. If it is not settled, the union can refer it to labour arbitration (not a court). An arbitrator (or arbitration board) will then hold a hearing and be asked to decide if the employer had “just cause” to terminate Ghomeshi. The arbitrator could: (1) uphold the employer’s decision; (2) reverse it completely and reinstate Ghomeshi with full back pay; (3) overturn the dismissal, reinstate Ghomeshi, but substitute some lessor form of discipline, such as a suspension; or (4) overturn the dismissal, order damages, but not reinstate Ghomeshi on the basis that the relationship has deteriorated so badly as a result of the party’s behaviour or other circumstances make it inappropriate to return the employee to the workplace.
The fact scenario as known at this point would make for a great labour arbitration exam question. An employee is fired for off-duty conduct that has not resulted in any criminal charge (at least not yet), but that perhaps could have if the women had gone to the police (i.e. one woman told the Star that she walked into Ghomeshi’s house and was “suddenly struck” and repeatedly hit, without her consent). Another woman, this one a co-worker of the terminated employee, claims the dismissed employee uttered violent sexual threats, or at least comments that would constitute sexual harassment by any definition (see the Star article). That alone would almost certainly be grounds for some form of discipline, if not discharge, unless there was evidence that the woman consented to the language and it was not unwanted. The difficulty for the employer on that point is that the woman co-worker apparently complained to management, yet no discipline was issued. The terminated employee appears to admit most if not all of the conduct, but argues that it was all done with the consent of the women. The employer is a public broadcaster and the employee is perhaps it’s biggest star. The information about the conduct was not public when the decision to terminate was made, but the employer presumably argues that it feared the public would learn of the story imminently and that it would suffer serious reputational damage if it continued to employer the employee once the information was released. In the hours after the discharge, the employee bad mouthes the employer, accuses it of dishonesty, and threatens a $50,000 lawsuit.
The case is not a straightforward one on these facts. Other than the alleged workplace sexual harassment of a co-worker, the conduct took place in the employee’s private life, not at work. Arbitrators sometimes uphold terminations for off-duty conduct, but they also insist that the employer demonstrate real potential business harm that would result from the employee’s conduct. The leading case [Millhaven Fibres Ltd  OLAA No. 4] sets out the test of what the employer must show as follows:
1. the conduct of the grievor harms the Company’s reputation or produce
2. the grievor’s behaviour renders the employee unable to perform his duties satisfactorily
3. the grievor’s behaviour leads to refusal, reluctance or inability of the other employees to work with him
4. the grievor has been guilty of a serious breach of the Criminal Code thus rendering his conduct injurious to the general reputation of the company and its employees
5. places difficulty in the way of the company properly carrying out its function of efficiently managing its works and efficiently directing its working forces.
Another decision described the test this way [Ottawa-Carlton District School Board and OSSTF, District 25 (Cobb), (2006), 154 L.A.C. (4th) 387 (Goodfellow):
This does not mean, however, that the School Board, unlike other employers, is entitled to be the “custodian of the grievor’s personal character or conduct”: see eg. Port Moody (City) v. C.U.P.E., Local 825 (1997), reflex, 63 L.A.C. (4th) 203 (B.C. Arb. Bd.) (Laing). Employees of school boards, like other employees, do not surrender their personal autonomy when they commence the employment relationship. In order for an employee’s off‑duty conduct to provide grounds for discipline or discharge, it must have a real and material connection to the workplace, in the manner described above. And, where the interest asserted by the employer, as it is here, is in its public reputation and in its ability to be able to successfully carry out its works, the concern must be both substantial and warranted. The test, so far as possible, is an objective one: what would a reasonable and fair‑minded member of the public (in this case, the school community) think if apprised of all of the relevant facts. Would the continued employment of the grievor, in all of the circumstances, so damage the reputation of the employer as to render that employment impossible or untenable?
It is tough for an employer to meet the standard of just cause for off-duty conduct when the behaviour involves the personal life of an employee not leading to criminal charges or conviction. This is especially the case if the employee has been a good performer with little or no prior discipline. Mitigating factors like these weigh heavy in labour arbitrations, even if the wrongful conduct involves harassment and even physical abuse.
The other thing to note is that this particular employer (the CBC) has shown that it can tolerate a substantial amount in terms of employee’s distasteful actions, on the air or in their off-air lives. Don Cherry has been uttering racist comments for years on a platform provided by CBC. Kevin O’Leary has encouraged people to “get out there and union bash” so rich people like him can get richer. Another radio personality, Sook-Yin Lee, starred in an art-house porn movie. None of these employees lost their jobs. True, these situations are obviously very different than hitting and choking women, for sure. That’s why the consent issue matters so much here. These other situations just go to the point that this is not an employer that is easily harmed by the questionable behaviour of individual on-air employees. It has a thick skin.
Some questions to ponder:
Do you think that the CBC will be able to establish that it will suffer serious harm if Ghomeshi were permitted to continue his radio show (Factor 1)?
What if the acts were consensual? Would that matter to your assessment? In this decision, the Nova Scotia Court of Appeal upheld an arbitrator’s decision overturning the dismissal of a janitor who had sex with a 15 year old student outside of work because it was consensual and the employee had a good prior record.
It looks like the issue of whether the acts were consensual or not will be very important. If they were consensual, the CBC probably has a huge uphill battle. After all, do you want your employer to be judge of what you do with a consenting adult in your own bedroom? How will CBC refute Ghomeshi’s evidence that the acts were consensual? If the women don’t want to testify for privacy reasons and concerns about harassment, should the CBC ask the arbitrator to subpoena them and force them to testify? If the women don’t testify, should the arbitrator allow ‘hearsay’ evidence that the acts were not consensual, for example from a CBC HR person who spoke to the women?
Do you think Ghomeshi’s conduct in the past 48 hours might influence an arbitrator’s decision whether to reinstate him, even if the arbitrator finds that there was not just cause for dismissal?
Exercise: Scan the cases from this CanLII search of: Millhaven Fibres” and “off duty conduct” to get a sense of how arbitrators deal with off duty conduct. What are your preliminary thoughts on Ghomeshi’s grievance (based on the limited facts we have so far)?
2. The Tort Lawsuit
UPDATE: As expected, Ghomeshi has dropped his frivolous lawsuit against the CBC (Tuesday, November 25, 2014).
Ghomeshi has also indicated that “he was launching a $50-million lawsuit claiming breach of confidence and bad faith” against the CBC, in addition to the unjust dismissal grievance. This raised lawyers’ eyebrows, because since the Supreme Court of Canada’s decision in Weber v. Ontario Hydro, all disputes arising expressly or inferentially out of the collective agreement must go to arbitration and separate tort lawsuits in courts are prohibited. I’m not really sure of the nature of the allegation here because it is so vague at this point, but on first glance the allegations seem to arise from the decision of CBC to terminate Ghomeshi, the legality of which is an issue arising directly under the collective agreement. We’ll have to see where that lawsuit goes. It could be a warning to people and media outlets other than the employer that they could face lawsuits if they say bad things about Ghomeshi. There is a decent chance a court will toss it on the basis of Weber, but we need more information about the nature of the lawsuit.
A quick CanLII note up of Weber v. Ontario Hydro returns over 1000 decisions. If you are interested in where arbitrators and courts have drawn the line between disputes that arise from a collective agreement and those that don’t, try reading some of these. Can you find any cases that are similar to the Ghomeshi case?
We will keep an eye on this case as it proceeds forward.