CBC story encompasses two significant aspects of employment law: investigating harassment and summary dismissal
By Stuart Rudner
As recent headlines have confirmed, Todd Spencer, formerly the executive director of human resources and industrial relations at CBC, has filed a wrongful dismissal claim against CBC as a result of the highly publicized termination of his employment arising out of the Jian Ghomeshi scandal.
He is seeking $640,000. CBC has taken the position it had just cause to dismiss Spencer as a result of his failure to properly investigate allegations of harassment; as set out in its Statement of Defence:
“Spencer determined that there had not been any inappropriate conduct in the CBC workplace by Ghomeshi,'' the defence statement says. "CBC reasonably relied on this determination… Spencer's conduct was fundamentally incompatible with continued employment,'' the broadcaster maintains.
This news story encompasses two significant aspects of employment law: investigation of harassment and summary dismissal. Since the Ghomeshi scandal broke, there has been much said about the duty of employers to provide a harassment-free workplace, investigate any allegations of harassment, and take action to address any harassment that is found.
However, there has been little, if any, discussion regarding the failure of those tasked with ensuring that there is no harassment (usually HR), and what that might mean for their job security.
As regular readers will know, any time an employer suspects misconduct, which would include the failure to perform one's duties properly, it is crucial that the employer engage in some form of investigation before pulling the trigger on a dismissal for cause. (See It’s all about doing a thorough investigation, The high cost of rushing to judgment, Investigating misconduct)
In this case, there was far more than a simple internal investigation. Rather, Janice Rubin, one of my colleagues in the employment law bar and a well-respected investigator, was retained to conduct a thorough investigation. And unlike the usual case, the employer in this case, CBC, made no effort to keep that report confidential.
In most cases, employers make efforts to ensure that any investigation report will remain privileged. Whether that is possible is open to debate, as our courts have made it clear that even when a lawyer is retained for the purpose of conducting an investigation, the report is not necessarily privileged. In some cases, counsel will retain a separate investigator, as opposed to having the investigator retained by the employer itself, and there is a fairly widespread view that this will cloak the report with privileged.
Every case will be determined based upon its own particular circumstances, but in many, if not most cases, the employer may have to produce the report if the matter proceeds to litigation.
In any event, that is a moot point in the case of Spencer, since the report was released to the public after it was completed. The report detailed the failings of CBC to protect employees and prevent and address workplace harassment. Obviously, Spencer forms a part of that report, both directly and indirectly.
So did CBC have just cause to dismiss him? That is a question that a judge will be called upon to answer, unless the matter is resolved before trial, which is quite likely given that less than two per cent of civil claims filed in Ontario make it all the way to trial.
Would a court find that just cause for dismissal existed? That is difficult to predict, particularly since we do not have all of the facts, nor the benefit of Spencer’s evidence. As I discuss in my book, You're Fired! Just Cause for Dismissal in Canada, as well as innumerable previous blog posts (Dismissal for cause never clear-cut, Assessing Just Cause for Dismissal) “just cause is not a lost cause", but the threshold for establishing it is quite high.
Summary dismissal has been referred to as the “capital punishment of employment law,” which should give readers a sense of how seriously our courts will take it. Courts and arbitrators will find that just cause for dismissal exists in appropriate circumstances, and every year, when I review recent cases, I read many where summary dismissal was upheld.
But there are no hard and fast rules and every case will be assessed based upon its own particular circumstances.
Furthermore, even if an employee is found to have engaged in misconduct or failed to perform her duties properly, that is not the end of the analysis. That might mean that some form of discipline is appropriate, but in order to assess whether summary dismissal is warranted, a contextual approach will be required, which will assess all relevant factors, such as the employee’s
- length of service
- disciplinary history
- duties and responsibilities
- nature of position
- response when confronted with the allegations.
Ultimately, a court or arbitrator will be attempting to determine whether the employment relationship has been irreparably broken, or whether the individual should receive some form of discipline, but not lose her job.
Spencer’s case is further complicated by the fact that his dismissal was so high-profile. Obviously, it will have had a tremendous impact upon his reputation and employability. This could lead to additional, or extraordinary, damages if the CBC is found to have dismissed him without just cause. As my partner, Natalie MacDonald, discusses at length in her book, Extraordinary Damages in Canadian Employment Law, employers are open to increasing liability for various forms of damages, including punitive, moral, and aggravated, if they are found to have acted improperly, all of which would be in addition to the “usual" damages for wrongful dismissal.
In this wrongful dismissal suit against the CBC, like any such dispute, the CBC will bear the burden of proof in establishing that it had just cause for dismissal. If it cannot do so, based upon all of the evidence, then the CBC will be liable for a substantial amount of damages.
That does not change the fact that there may well have been substantial harassment taking place within CBC, and that there was a failure on the part of CBC to control it. Spencer may succeed even if it is found that he did not fully carry out his duties; that, in and of itself, would not constitute just cause for dismissal.
Poor performance can constitute just cause for dismissal, but an employer will usually have to show that it:
- set a clear, reasonable standard
- communicated expectations
- measured the performance
- gave clear warning of consequences (including summary dismissal)
- took appropriate action
- warnings
- counseling
- training
- allowed reasonable time for improvement.
It is far from clear that the CBC did so in this case. So while there was clearly a failure at CBC to address workplace harassment, and Spencer may well not have done his job as well as he could have or should have, it is also far from clear that just cause for dismissal existed. So far, we have the claim filed by Spencer, the defence filed by the CBC, and Rubin’s report; we have not heard Spencer’s evidence, which will be critical.
