Being part of a union makes lawsuit a moot point
One of the CBC's best known personalities, Jian Ghomeshi, may not have a case against his employer after he was fired over allegations of violence and sexual assault.
But because Ghomeshi is a unionized employee, he is unable to sue the public broadcaster, according to labour lawyers.
Ghomeshi, host of the CBC’s radio program Q, has been at the centre of a sordid affair that came to light when he was fired from his cultural affairs show on Oct. 26.
The CBC cited "serious deliberation and careful consideration" in its decision to let Ghomeshi go.
Later that day, Ghomeshi detailed in a Facebook post that he was fired for his actions in the bedroom.
"I’ve been fired from the CBC because of the risk of my private sex life being made public," the post reads. According to Ghomeshi, he engaged in "rough sex" but that it had always been consensual, and he was being fired after showing evidence of this to the CBC.
He then filed a $55-million lawsuit against the CBC.
"In bad faith and violation of the mutual understanding of a common interest between itself and Ghomeshi, the CBC violated the confidence that it had been entrusted with over several months respecting Ghomeshi’s personal life, and wrongfully used the confidential information obtained by it under the guise of trusted confidant, as the basis to terminate his employment," the statement of claim said.
"The conduct of the CBC has negatively impacted and will continue to impact Mr. Ghomeshi’s public reputation and future employment and other opportunities."
Since then, several women have come forward to the Toronto Star and Toronto police regarding allegations of assault.
But his case against the CBC could be a moot point, according to labour lawyers.
Being part of a union means any action taken against the employer as a result of the employment relationship would be governed by the collective agreement — meaning the lawsuit will likely be thrown out by the court, explained Howard Levitt, senior partner at Toronto-based employment firm Levitt & Grosman LLP.
"Does he have a case? Not in court he doesn’t. Because he’s in a union, he has a case under the collective agreement, which will be entirely confidential — which is why it doesn’t serve his interests at the moment," Levitt said, adding that the lawsuit is more of a public relations stunt as opposed to legal proceedings filed in earnest. "It’s a bit of a master stroke, getting ahead of it."
Further, Ghomeshi is seeking reinstatement under the collective agreement through the grievance procedure. However, it is highly unlikely he will receive back pay and reinstatement — instead, he is more likely to have the case thrown out, or win the case but not be reinstated, Levitt said.
More and more arbitrators are siding with employers when it comes to protecting the brand and reputation of the company. Particularly in this case, it would be viable for the CBC to argue the damage has already been done — regardless of criminal investigations. The CBC’s audience has already been tainted.
"What (arbitrators) will likely say is that (Ghomeshi) should not be reinstated because the CBC has the right — and any employer has the right — to determine whether a CEO or top talent or someone who represents the brand or the station is toxic to that brand, or is effectively a poison chalice that they have to rid themselves of," he said. "There are a number of cases in the labour arbitration context where they talk about no reinstatement if the conduct harms the company’s reputation or product."
As details surrounding Ghomeshi’s actions have emerged, the question has been raised about privacy rights. Being the face of a publicly-funded organization, can also mean forfeiting some of those rights, said Allan Rouben, an employment and labour lawyer at his namesake firm in Toronto.
"He’s a public figure, he’s the face of the organization," Rouben said. "Insofar as that person’s privacy is concerned, it’s a balancing of interests. However, as public figures and faces of an organization, I think it’s understood in this day and age that your private actions can have implications for your employer’s image."
All’s fair in love and war
Further complicating the matter is that one of the women who have come forward alleging abuse was a CBC employee. According to the Toronto Star, the woman had previously approached her union representative in the past, and the company is just now conducting an investigation.
The possibility exists, therefore, that Ghomeshi’s union, the Canadian Media Guild, could turn down his case.
"If the union were to legitimately conclude that the broader interest of the union membership are not supportive of the reinstatement of Ghomeshi then they likely would decide they shouldn’t proceed with that grievance in the first place," Rouben explained.
Of course, any such decision would have to be vetted by the union and in keeping with its duty to fairly represent members of its bargaining unit.
"Unions operate on the principles of fairness and equality. We are obligated to help each member to the best of our ability with whatever issues come forward," said Carmel Smyth, national president of the CMG. "Every member has the right to file a grievance or to have one filed on their behalf. So the short answer is, if a member requested that we file a grievance, we will file one."
Though she said she is under legal obligation to maintain a strict confidence regarding the specifics of this case, Smyth pointed out that the union must, under the Canada Labour Code, provide fair representation.
But historically, duty of fair representation cases have a very low success rate — less than one per cent, for the unionized employee, according to Levitt.
"There’s no question, and it’s so often misunderstood and overlooked, that unions deprive employees of more rights than they give them," he added.
