Questions from a Scandal – Can a Unionized Employee File a Complaint Against an Employer?

Nelligan O’Brien Payne gratefully acknowledges the contribution of Alessia Petricone-Westwood, Student-at-Law in writing this article.

Jian Ghomeshi’s termination from the CBC has touched on a variety of subject areas, including the power of celebrity; our societal dialogue surrounding allegations of sexual assault; and the legal implications of filing a lawsuit against an employer for wrongful dismissal. Setting aside the more contentious aspects of Mr. Ghomeshi’s termination, one of the most prominent legal issues is the fact that he has commenced a civil lawsuit against his employer, despite being a unionized employee. Mr. Ghomeshi’s Statement of Claim requests damages and associated relief from the CBC for wrongful termination. The CBC has filed a Motion to Dismiss in response, arguing that the courts do not have jurisdiction to hear this claim because it falls within the exclusive jurisdiction of a labour arbitrator.

The Supreme Court of Canada held in Weber v. Ontario Hydro that if a dispute between an employee and their employer arises under the collective agreement, the jurisdiction to resolve it lies exclusively with a labour arbitrator. Justice McLachlin (as she was then), writing for the majority, stated that you needed to look at the nature of the dispute and the scope of the collective agreement in order to determine if the labour arbitrator had exclusive jurisdiction over the matter. According to the CBC’s Motion to Dismiss, Mr. Ghomeshi is a member of the Canadian Media Guild (CMG). The Collective Agreement between the CBC and CMG, available on the CMG’s website, contains a detailed grievance procedure for its members. Article 16.7.5 specifically addresses dismissals, and states, “grievances related to dismissal shall be referred directly to full arbitration, which will be an expeditious process.” The Collective Agreement, which governs Mr. Ghomeshi’s relations with the CBC, clearly states that grievances related to an employee’s termination are to be referred to arbitration. In Weber, the Court explained, “disputes which expressly or inferentially arise out of the collective agreement are foreclosed to the courts.” The Court also reviewed past case law and confirmed that wrongful dismissal is one of the claims over which courts do not have jurisdiction. Mr. Ghomeshi’s claim of wrongful termination therefore falls squarely within the Collective Agreement, and according to the Supreme Court of Canada, would be outside the courts’ jurisdiction.

Moreover, labour relations at the CBC are governed by the Canada Labour Code. The Labour Code contains provisions that further support the fact that issues between an employee and employer who are bound by a collective agreement are to be resolved through arbitration and not in the courts. Section 57(1) states that “every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties to or employees bound by the collective agreement, concerning its interpretation, application, administration or alleged contravention.” This provision directs the parties to a collective agreement to draft provisions related to all disputes that arise from the collective agreement. As discussed above, the CBC and CMG Collective Agreement directs parties to bring their grievance to arbitration and not to the courts. Section 58(1) states that “every order or decision of an arbitrator or arbitration board is final and shall not be questioned or reviewed in any court.” This further suggests that the courts are not the appropriate forum for resolving disputes that arise out of a collective agreement. Given that the law appears to support the CBC’s position that Mr. Ghomeshi’s claims fall within the exclusive jurisdiction of a labour arbitrator, it will be interesting to see if the Ontario Superior Court of Justice grants the Motion to Dismiss the claim.

Regardless of how the Ontario Superior Court disposes of Mr. Ghomeshi’s Statement of Claim and the CBC’s Motion to Dismiss, the CMG has also filed a grievance on behalf of Mr. Ghomeshi for wrongful termination. According to the motion materials the CBC filed with the Court, the grievance contains the same allegations as Mr. Ghomeshi’s Statement of Claim. Mr. Ghomeshi alleges that the CBC terminated his employment because of his sexual bevahiour and other activities that occurred in his private life. Other than one allegation of sexual harassment in the workplace, the rest of the complaints against Mr. Ghomeshi appear to have occurred when he was “off the clock.” Generally, an employee’s conduct outside of work will not justify dismissal unless such behaviour is totally incompatible with the discharge of their duties, or it would cause severe prejudice to the employer. The arbitrator in this case will therefore have to determine if Mr. Ghomeshi’s behaviour in his personal life caused sufficient harm to the CBC to warrant his dismissal. Arbitrators and courts have sometimes found that an employee’s off-duty conduct may warrant dismissal. The early seminal case Millhaven Fibres Ltd v. OCAW, Local 9-670 (Millhaven Fibres)¹sets out the five factors an employer must demonstrate to warrant the dismissal:

1. Did the employee’s conduct harm the employer’s reputation?
2. Did the employee’s behaviour render him unable to perform his duties satisfactorily?
3. Has the employee’s behaviour led to refusal, reluctance, or inability of other employees to work with him or her?
4. Has the employee been guilty of serious breach of the Criminal Code thus rendering his or her conduct injurious to the general reputation of the company and its employees?
5. Did the employee’s conduct place difficulty in the way of the employer properly carrying out its function of efficiently managing its work and efficiently directing its workforce?²

If the CBC is able to satisfy these five factors, it may be able to justify Mr. Ghomeshi’s dismissal for the way he conducted himself in his personal life. It is difficult for an employer to justify terminating an employee for their off-duty behaviour, particularly if such behaviour has not resulted in a criminal conviction.

If Mr. Ghomeshi is successful in proving that he was wrongfully terminated from the CBC, there are various remedies available to him, one of which is reinstatement. The Ontario Superior Court of Justice in Hamilton-Wentworth District School Board v. Fair upheld a decision by the Human Rights Tribunal of Ontario to reinstate an employee. While the Court noted that reinstatement is an uncommon remedy in human rights litigation, it is not unusual “in labour relations litigation under the provisions of a collective agreement where one might be dealing with exactly the same issues.” It is questionable whether a labour arbitrator would order such a remedy given the volatile nature of the dispute and the publicity it has attracted. However, it does remain an option available to the arbitrator.

Mr. Ghomeshi’s dismissal will surely be the subject of discussion for many months to come. In addition to the more controversial aspects of the story, it will also provide an opportunity to examine the conditions under which a high profile and public facing employee may be terminated for off-duty behaviour, as well as an appropriate remedy if Mr. Ghomeshi is successful in his claim against his employer.

¹ (1967), [1967] OLAA No 4.
² Tobin v Canada (Attorney General), 2009 FCA 254 at para 24.