Over the last month, the Canadian news media has devoted significant time to covering the Jian Ghomeshi scandal. Aside from the celebrity gossip factor, the story has had such staying power because it touches on so many controversial issues - BDSM (Bondage & Discipline / Domination & Submission / Sadism & Masochism), sexual consent, victim credibility, privacy concerns, power politics, criminal charges - the list is long. In addition (and more importantly for employers) the Ghomeshi story began as a story about the termination of an employee's employment.
From 2007 until last month, Mr. Ghomeshi was the host of "Q," a radio program created by and broadcast on the CBC. Mr. Ghomeshi was not just a host. But literally and figuratively one of the 'faces' of CBC - his visage featured prominently in advertising for the CBC's programing and he acted as a brand ambassador for the corporation.
The scandal unfolded quickly, beginning on October 26, 2014, with CBC's largely neutral announcement that it was parting ways with Mr. Ghomeshi. Mr. Ghomeshi followed up the next day with a Facebook post in which he claimed he had been terminated for his private sexual activities, including his participation in consensual BDSM encounters. TheToronto Star then released an exposé article containing allegations from three anonymous women who claimed that Mr. Ghomeshi physically assaulted them without their consent. A fourth woman alleged that during her time as a CBC employee Mr. Ghomeshi made unwelcome sexual advances towards her. Once the Star story went public, more women, including two that agreed to be identified, came forward with additional stories of sexual assault. In the midst of these increasing allegations, Mr. Ghomeshi filed both a grievance with his union, seeking damages and reinstatement, and a $55 million lawsuit against the CBC. More recently, he was charged with four counts of sexual assault and one count of "overcome resistance - choking".
50 Shades of Misconduct: Lessons for Employers
Although the multiple sexual assaults alleged in the Ghomeshi scenario fall at an extreme end of the employee misconduct spectrum, there are numerous in-between shades of misconduct where employers will encounter similar questions as those the CBC has been faced with, such as:
1. Can I fire an employee for his misconduct in his private life?
Some employees, especially ones who become the public face of their employer such as Mr. Ghomeshi, owe fiduciary obligations to their employers. When these employees engage in (mis)conduct in their personal lives that interferes with the employer's reputation and ability to conduct its operations, the employees have breached their obligations. As a consequence, such employees may be disciplined or terminated for cause. While the Ghomeshi scenario is a headline grabber, Canadian case law provides numerous other examples where extracurricular misconduct has justified dismissal, from the possession of child pornography (PDF) to fraud (PDF) to inappropriate personal relationships (PDF).
Despite these precedents, however, employers cannot assume they have carte blanche for dismissing employees whose personal conduct they disagree with. Human rights laws need to be considered, including the protections for discrimination on the grounds of sexual preference and, in certain jurisdictions, criminal offences where pardons have been granted. In addition, the nature of the employer's business, the role the employee plays in that business and the particular misconduct engaged in by the employee will all affect whether a termination for cause is justified. Accordingly, any termination for misconduct outside of working hours must be carefully considered.
2. What are my obligations for preventing sexual assault or harassment?
Although the majority of the allegations in the Ghomeshi story concern encounters outside of the workplace, several allegations relate to unwanted comments and physical contact in the CBC workplace. This should remind all employers to take allegations of sexual harassment and assault seriously. Although each province treats the issue slightly differently, employers across the country must take steps to ensure that workplaces are free from sexual harassment and violence.
Complying with the relevant legislation requires employers to have sexual harassment policies and procedures, including a process through which sexual harassment complaints can be made and investigated. In the wake of the Ghomeshi scandal, we recommend that all employers review their policies and procedures on these points, to ensure that they are adequate to protect their employees.
3. If I employ unionized workers, can I still be sued in the courts?
Employers are forgiven for thinking that in a unionized labour situation they are protected from lawsuits by disgruntled employees - this is usually the case. Unionized employees are bound by their collective agreement, which requires any disputes about wrongful termination to be addressed though the process set out in the agreement (usually arbitration). Mr. Ghomeshi's $55 million lawsuit, however, was not for wrongful dismissal but for defamation, breach of confidence and punitive damages. As such, his action was not automatically barred by the collective agreement. Rather, CBC was required to bring a motion to the court for a determination of whether Mr. Ghomeshi's allegations fell within the collective agreement. Shortly after CBC did so, Mr. Ghomeshi caved, withdrew the lawsuit and paid CBC for the trouble it had to go to to have the lawsuit dismissed.
Conclusion: More Notes on a Scandal
While the court won't be looking at the Ghomeshi lawsuit, the legal analysis is not over just yet. The CBC's conduct, in terminating Mr. Ghomeshi and in following its sexual harassment policies, may still be looked at by the arbitration panel. If so, there are bound to be more employment law issues arising from the case - so don't turn that dial!