5Q: Janice Rubin, employment lawyer, on the legal rights of employees, employers when someone is fired

Just days after the CBC drew widespread praise for its reporting of the Ottawa shooting and Peter Mansbridge’s measured “This is what we know for sure” response, the national broadcaster is back in the news.
This time, who knows what for sure is decidedly murky.
What is for certain is that Jian Ghomeshi, the host of the celebrated cultural affairs program Q, has parted way with his employer of nearly 14 years. And that the departure is very far from amicable.
Ghomeshi is seeking $55 million in damages from the CBC which he says fired him in an effort to distance itself from “unsavory” (his word) allegations relating to his private sex life.
Ghomeshi, a unionized employee, is said to also be seeking reinstatement under his collective agreement.
In a Facebook post, Ghomeshi, 47, referred to engaging in “rough sex” or forms of BDSM with a former girlfriend. He said the sexual practices were “mutually agreed upon, consensual, and exciting for both partners” and maintains he’s done nothing wrong.
The Toronto Star, meanwhile, reported that three women have made allegations of violent, non-consensual assaults by Ghomeshi, adding that a former employee of the CBC claimed she was sexually harassed by Ghomeshi on the job.
CBC, for its part, has had little to say on the matter:
"The CBC is saddened to announce its relationship with Jian Ghomeshi has come to an end. This decision was not made without serious deliberation and careful consideration," the network said in a statement published on its website.
In all the back and forth, we asked Janice Rubin, a top employment lawyer in Toronto, to help us better understand the legal landscape in Canada, and what a case like this could mean for employers, and employees. Rubin agreed to speak on general legal principles that apply, but declined comment on what either party (Ghomeshi or CBC) has done or not done because none of it is yet proven.

First things first: Can an employee be fired for what he (or she) does in his private life?

There are some cases that support an employer’s ability to do that. It is usually an uphill battle because the employer has got to show that there is a connection between the off-duty conduct and its legitimate interests. If this really is off-duty conduct — big ifs, right? — and if it is consensual activity and it’s just about one’s interests or proclivities, that may have nothing to do with his job at the CBC. But we don’t know, we don’t what’s happened here.
If, though, it’s not off-duty conduct, or if it is off-duty conduct plus workplace conduct – and there is reference (in media stories) to a (former) employee — then, theoretically, it’s a different matter. But then the employer must investigate an allegation of sexual harassment or sexual assault and that investigation would include not only talking to the person who says ‘I was harassed’ or ‘I was assaulted’, but also the person who is alleged to have done the behaviour and any witnesses, and the employer needs to get to the end of that piece before it decides to terminate. We have no idea whether that has happened here so it is impossible to comment on that.

Generally speaking, how easy or difficult is it these days for an employer to fire an employee in Canada?

It depends. Certainly in a non-unionized environment an employer can fire an employee on a without-cause basis, that is, when the employer wants to, i.e. if they need to downsize, or you’re not the most motivated employee. In a non-unionized context, an employer can fire you and provide you reasonable notice, or pay-in-lieu notice, provided that the reason behind the determination isn’t coloured by prohibited grounds of discrimination (for example, you are someone with a disability, or you are gay or you are Hindu. Those are all prohibited grounds).

In a unionized context, unionized employees have more protection under a collective agreement and, other than downsizing due to financial downturns (for example), they are not to be fired unless there is just cause for that determination. Just cause, very generally, in a unionized and non-unionized context, is seen as very, very, very serious types of misbehaviour – violence, stealing, gross conflict of interest, that sort of thing.

The overwhelming number of cases shows that employers have a very, very difficult time showing that termination is for cause. And then the question becomes, what is reasonable notice? There is a negotiation over how much someone should be paid on the way out.

Can you elaborate why it matters if the misbehaviour takes place off-duty versus on the job?

An employer, really, in most cases, does not have a legitimate interest in the off-duty conduct of its employees. In most cases, what you do when you go home, when you are off the clock is your business, not the employers. In this case, we don’t know whether it is all off-duty conduct or if some of it is workplace conduct.
There are some exceptions, but then again, the off-duty conduct has got to be severely prejudicial to the employer’s legitimate business interests and there has got to be a close connection.
If you look at case law, I would say that, generally, employers overreach. An example of this was a case from 15 or 17 years ago. It involved an employee who was a fraud investigator who worked with the Toronto stock exchange. That employee was caught cheating on a mandatory exam and was fired for cause. This employee’s job clearly was to maintain honesty and integrity, that sort of thing, and cheating on that type of exam was absolutely incongruous with his ongoing duties.

I would have thought you would have had to do something illegal, but that’s not what you are telling me.

It doesn’t have to be illegal, but there has to be a nexus there.

How much proof does an employer need to have? Do you have to know without a shadow of a doubt that the allegations being made against an employee are true?

If you are firing for cause, you need to be certain that you’ve got your factual ducks in a row. Firing on a rumour, and I am not commenting on this case because I don’t know what has happened here, would be very problematic. You really need to know what the facts are. You need to have engaged in some kind of process that allows you to discover those facts and then you can proceed. We don’t know if that happened here.

How much risk is an employer taking on if there is misconduct at work, sexual harassment for instance, and an employer keeps that employee on staff after being made aware of allegations?

It depends on a lot of things. It depends on whether that person repeats the behaviour or not. If there is something that the employer has dealt with and the employee knows not to do that again and it doesn’t happen again, there is probably little risk. On the other hand, if the employer knows and does nothing to stop the employee and the employee carries on with impunity then the employer has aggravated the situation in terms of its liability. If the victims of that harassment come forward and bring a human rights application, for example, or some kind of lawsuit, then the employer may be in trouble.

Can you say anything on whether you think the CBC has done the right thing in firing its employee or has it put itself in a difficult position?

I can’t say because we don’t know what has happened. (But) what I think the CBC has done is acted with some restraint in terms of telling its side of the story. From a public relations perspective, I am not sure that is necessarily helpful to them, but I think from a legal perspective that is certainly consistent with what an employment lawyer would say, which is, not to disclose the reason behind a termination in the media.

Why not?

Because it’s private. It is between the employer and the employee. It can ultimately be harmful to the employee if the employer is disclosing its reasons behind a termination in a public forum.

How often are these kinds of cases settled before they go to court?

Most workplace-related disputes get settled, but there are exceptional ones that don’t. It’s hard to say whether this one will be an exceptional one or not. Typically, feelings run very, very high immediately after an event like this and then people tend to cool down a little bit and think more reasonably about the path that lies ahead, and I am talking about both parties.

Is it typical for an employee who has been fired to come away with some kind of a settlement?

In a non-unionized context, the most common outcome is that there is some kind of settlement that involves the payment of money. But remember, he (Ghomeshi) is a unionized employee and so it’s hard to say what that might mean. He does theoretically have the right to be reinstated, along with some back pay. Hard to say what’s going to happen here.

#author: darahhansen