B.C. Supreme Court overturns surprising decision by arbitrator that gave CBC reporter his job back after he nearly poisoned someone who complained about him
In a previous article, I discussed what is, and what is not, just cause for termination. Determining just cause is definitely an art, not a science, and reasonable people — including judges and arbitrators — will disagree with respect to whether or not just cause exists in a particular set of circumstances.
In that article, I referred to the “poisoning” case of Canadian Broadcasting Corporation Radio-Canada v. Canadian Media Guild, in which a CBC reporter attempted to poison a vocal critic. (To view that article, click here.)
The arbitrator found that just cause for termination did not exist. I included that case as I thought that the arbitrator’s decision would surprise many readers and reinforce the point that just cause is not always as obvious as one might think. Subsequently, the arbitrator’s decision was appealed to the Supreme Court of British Columbia, which overruled the arbitrator and found there was just cause for termination.
The case now provides a good example of how different people can come to different conclusions based upon the same set of facts. To summarize the facts of the case briefly: The grievor was the CBC’s only reporter in a small town. He ran a story relating to Mr. Hamilton, the head of an organization opposed to government cuts.
Hamilton called the grievor and threatened to complain to the press council about the story and about the grievor. Subsequently, Hamilton publicly questioned the grievor’s ethics and complained to the CBC and CRTC about the grievor. The grievor, upset by Hamilton’s conduct, decided he would exact his revenge by buying a box of chocolates, spitting on them, and then sending them to Hamilton. In furtherance of his plan, he purchased a box of chocolates.
Later, at home preparing chicken for dinner, the grievor threw the chocolates on the dirty floor. He then took two of them and rubbed them in the thawed, raw chicken and then replaced them in the box. He mailed the package to Hamilton. Later that night the grievor began to have second thoughts. He made efforts to contact Hamilton and warn him, and eventually succeeded in doing so. Hamilton called the police.
The grievor, presumably realizing the precarious position he was in, told his employer what had happened. After a disciplinary investigation meeting, he was dismissed. Through his union, he grieved the dismissal. The arbitrator found the behaviour in question, while aberrant and disciplinable, was not journalistic misconduct. He also found there was a low risk of recurrence of this type of behaviour on the part of the grievor, and that there did not exist sufficient evidence that the reputation of the CBC would have been significantly damaged if the grievor had been disciplined rather than dismissed.
By way of contrast, the Supreme Court held the arbitrator’s decision was patently unreasonable. In particular, the court found that
• The grievor’s actions were directly related to his role as a journalist.
• At the time of dismissal, it was reasonable for the CBC to be concerned about further adverse publicity if the grievor returned to his job.
• The credibility of the CBC and of the grievor was seriously undermined by his conduct, which reflected a strong bias.
• The grievor’s continued presence as a CBC reporter would likely create a chill with respect to anyone who might want to criticize his news coverage.
• The grievor’s conduct went to the heart of his credibility as a CBC reporter, which was irrevocably damaged as a result of his actions, as well as the credibility of the CBC.
Furthermore, the Supreme Court considered evidence that the Arbitrator had deemed inadmissible. This evidence related to the fact the grievor had previously been employed by the CBC in Whitehorse, during which time he exhibited angry and inappropriate behaviour in a disagreement with management and walked off the job.
When asked about this at the time he applied for the position in question, he replied that the behaviour would not be repeated. The court also took note of evidence that there was a hole in the wall of the grievor’s office, which was caused by his throwing a chair.
In reaching the conclusion that dismissal was warranted in the circumstances, the court found the relevant issue before the arbitrator was not whether the grievor’s conduct might recur, as the arbitrator had stressed, but whether it had irreparably harmed his credibility as a CBC reporter and, as a result, the employment relationship.
The court found that it had. In my opinion, the correct decision was ultimately made in this case: there was just cause for termination. However, the case is a good reminder that the outcome of any claim is not as predictable as one might expect. Presumably, the people at the CBC who made the decision to terminate thought they did so with good reason and with just cause. At least one arbitrator disagreed.
We do not know what others might have decided. As most readers will know, the decision to terminate for cause is always risky, and employers are well-advised to proceed with caution (and, ideally, with legal advice).
Stuart Rudner practices civil litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or [email protected].
In that article, I referred to the “poisoning” case of Canadian Broadcasting Corporation Radio-Canada v. Canadian Media Guild, in which a CBC reporter attempted to poison a vocal critic. (To view that article, click here.)
The arbitrator found that just cause for termination did not exist. I included that case as I thought that the arbitrator’s decision would surprise many readers and reinforce the point that just cause is not always as obvious as one might think. Subsequently, the arbitrator’s decision was appealed to the Supreme Court of British Columbia, which overruled the arbitrator and found there was just cause for termination.
The case now provides a good example of how different people can come to different conclusions based upon the same set of facts. To summarize the facts of the case briefly: The grievor was the CBC’s only reporter in a small town. He ran a story relating to Mr. Hamilton, the head of an organization opposed to government cuts.
Hamilton called the grievor and threatened to complain to the press council about the story and about the grievor. Subsequently, Hamilton publicly questioned the grievor’s ethics and complained to the CBC and CRTC about the grievor. The grievor, upset by Hamilton’s conduct, decided he would exact his revenge by buying a box of chocolates, spitting on them, and then sending them to Hamilton. In furtherance of his plan, he purchased a box of chocolates.
Later, at home preparing chicken for dinner, the grievor threw the chocolates on the dirty floor. He then took two of them and rubbed them in the thawed, raw chicken and then replaced them in the box. He mailed the package to Hamilton. Later that night the grievor began to have second thoughts. He made efforts to contact Hamilton and warn him, and eventually succeeded in doing so. Hamilton called the police.
The grievor, presumably realizing the precarious position he was in, told his employer what had happened. After a disciplinary investigation meeting, he was dismissed. Through his union, he grieved the dismissal. The arbitrator found the behaviour in question, while aberrant and disciplinable, was not journalistic misconduct. He also found there was a low risk of recurrence of this type of behaviour on the part of the grievor, and that there did not exist sufficient evidence that the reputation of the CBC would have been significantly damaged if the grievor had been disciplined rather than dismissed.
By way of contrast, the Supreme Court held the arbitrator’s decision was patently unreasonable. In particular, the court found that
• The grievor’s actions were directly related to his role as a journalist.
• At the time of dismissal, it was reasonable for the CBC to be concerned about further adverse publicity if the grievor returned to his job.
• The credibility of the CBC and of the grievor was seriously undermined by his conduct, which reflected a strong bias.
• The grievor’s continued presence as a CBC reporter would likely create a chill with respect to anyone who might want to criticize his news coverage.
• The grievor’s conduct went to the heart of his credibility as a CBC reporter, which was irrevocably damaged as a result of his actions, as well as the credibility of the CBC.
Furthermore, the Supreme Court considered evidence that the Arbitrator had deemed inadmissible. This evidence related to the fact the grievor had previously been employed by the CBC in Whitehorse, during which time he exhibited angry and inappropriate behaviour in a disagreement with management and walked off the job.
When asked about this at the time he applied for the position in question, he replied that the behaviour would not be repeated. The court also took note of evidence that there was a hole in the wall of the grievor’s office, which was caused by his throwing a chair.
In reaching the conclusion that dismissal was warranted in the circumstances, the court found the relevant issue before the arbitrator was not whether the grievor’s conduct might recur, as the arbitrator had stressed, but whether it had irreparably harmed his credibility as a CBC reporter and, as a result, the employment relationship.
The court found that it had. In my opinion, the correct decision was ultimately made in this case: there was just cause for termination. However, the case is a good reminder that the outcome of any claim is not as predictable as one might expect. Presumably, the people at the CBC who made the decision to terminate thought they did so with good reason and with just cause. At least one arbitrator disagreed.
We do not know what others might have decided. As most readers will know, the decision to terminate for cause is always risky, and employers are well-advised to proceed with caution (and, ideally, with legal advice).
Stuart Rudner practices civil litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or [email protected].
