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 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.
According to the CBC’s Motion to Dismiss, Mr. Ghomeshi is a member of the Canadian Media Guild (CMG). The CBC and CMG Collective Agreement directs parties to bring their grievance to arbitration and not to the courts. Mr. Ghomeshi’s claim of wrongful termination would likely fall within the Collective Agreement and be outside the courts’ jurisdiction.
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. This directs the parties to a collective agreement to draft provisions related to all disputes that arise from the collective agreement. 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 need to determine if Mr. Ghomeshi’s behaviour in his personal life caused sufficient harm to the CBC to warrant his dismissal.
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. For more information, read Alessia’s full article, Questions from a Scandal – Can a Unionized Employee File a Complaint Against an Employer?