Lawyers for CBC host plan to file $50-million lawsuit
By Stuart Rudner
Sex and dismissal seem to the topic of the day, with well-known CBC Radio host Jian Ghomeshi publicly alleging, via Facebook, that he believes he was fired because the broadcaster thought his ``sexual behaviour was unbecoming of a prominent host.''
Ghomeshi took to Facebook to lay out his side of the story as his lawyers apparently plan to file a $50-million dollar lawsuit. Interestingly, Ghomeshi also plans to file a grievance.
In a lengthy and detailed social media post this past weekend, Ghomeshi writes he has:
- “been fired from the CBC because of the risk of my private sex life being made public”
- “always been interested in a variety of activities in the bedroom'' that included
- “adventurous forms of sex'.'
Ghomeshi suggests some individuals have engaged in a campaign of harassment targeting him, and he has been working with the CBC to deal with the issue. He states that a few days ago, he met with representatives of the CBC and showed them evidence that everything he has done has been consensual. Shortly thereafter, he says, the decision was made to dismiss him.
In response, the Twitterverse and other social media have been filled with commentary, the vast majority supportive of Ghomeshi and suggesting that his private life is none of his employer’s business. Several people have referenced former prime minister Pierre Trudeau’s famous comment that there's no place for the state in the bedrooms of the nation, and extended this to apply to employers as well.
While an employee’s personal life is generally none of his employer’s business, that rule is not absolute. To begin with, it is important to remember there are two ways in which employees in Canada can be dismissed:
•without cause
•with cause.
The vast majority of dismissals are without cause, in which case notice of dismissal, or pay in lieu (often referred to as severance pay) is required. Employers can dismiss an employee at any time, for almost any reason, so long as they provide the required amount of notice or severance. I say "almost any reason" because the decision to dismiss cannot be based upon a ground that is protected by human rights legislation, and unionized employees will have additional protections.
As I have often said, half-jokingly, an employer would be within its rights to choose to dismiss an employee because of the colour of her shirt, so long as it provides the required amount of notice of dismissal or pay in lieu thereof. Outside of the unionized context, very few employees have job security.
Of course, Ghomeshi may have other legal remedies if he can show the CBC acted unlawfully in other matters, such as via defamation, or exhibited bad faith in the course of dismissal. At this point, we have not seen the substance of the claim that is apparently to be filed.
Dismissal with cause, or just cause, is less common but, as I often say, “just cause is not a lost cause”. Having spent years writing and updating my text on the subject, You're Fired! Just Cause for Dismissal in Canada, I can confidently say that courts and arbitrators will upheld dismissal for cause where it is appropriate, even where it is based on conduct that took place off-duty. However, the threshold is high and the analysis complex.
In assessing whether they have just cause to dismiss, employers cannot focus solely on the alleged misconduct. Our courts have clearly established a requirement that while misconduct may warrant discipline, in order to assess the appropriate level of discipline, a contextual approach must be adopted that takes into account all relevant circumstances. This will require consideration of, effectively, the entire relationship, including:
• length of employment
• prior misconduct
• prior discipline
• the nature of the employee’s position
• the level of trust required,
• the employee’s response when confronted
• any other relevant circumstances.
The courts will require that the severity of any discipline imposed be proportionate to the egregiousness of the misconduct. In other words, the punishment must fit the crime. Since dismissal for cause has been referred to as “the capital punishment of employment law”, it is clear the conduct must be egregious.
In the leading case of McKinley v. B.C. Tel., 2001, the Supreme Court of Canada wrote:
“More specifically, the test is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship. This test can be expressed in different ways. One could say, for example, that just cause for dismissal exists where the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or indirectly inconsistent with the employee’s obligations to his or her employer. “In accordance with this test, a trial judge must instruct the jury to determine: (1) whether the evidence established the employee’s deceitful conduct on a balance of probabilities; and (2) if so, whether the nature and degree of the dishonesty warranted dismissal.”
Employees can be disciplined or dismissed for off-duty conduct, including online comments, has a negative impact on the employer or the employment relationship. For example, posting something that will impact the reputation of your employer, or making inappropriate or harassing statements about your colleague, or insulting your supervisor, can all be used in order to justify discipline, including, potentially, dismissal.
A public figure such as Ghomeshi is obviously susceptible to this type of scenario and, of course, it can reflect upon his employer. This is not unlike the situation last week where a 73-year-old teacher at a highly-respected Jesuit college in Quebec was dismissed when erotic films that she was in 50 years earlier surfaced online (see a separate blog post on that issue).
The bottom line is that off-duty conduct can, in the right circumstances, warrant summary dismissal. Even where it does not, employers will usually have the right to dismiss the employee on a without cause basis by providing notice and/or severance pay. Of course, an employee such as Ghomeshi may have other remedies available to him or her depending on the manner in which they are treated and the impact on them and their careers.
