There are two sides to every story and terminations are of course no exception. For every reason a company may have to terminate an employee, an employee will likely have countless responses to excuse his or her behavior or conduct, even if such attempts are fruitless. However, few terminations become so public, and are such a shock to the public consciousness, as that of radio host Jian Ghomeshi last month.
Ghomeshi’s dismissal at first seemed rather straightforward, with the CBC announcing that they had “severed ties” with the popular host. Then the news took a series of bizarre turns, with the announcement that Ghomeshi planned to sue his former employer for a whopping $50 million (later $55 million). Ghomeshi’s very public and explicit defence of his termination which he released to Facebook later that evening, was followed only days later by multiple women coming forward with serious allegations of violent sexual assaults by Ghomeshi.
As the story continues to develop, some interesting questions have arisen with regard to workplace law. What was the deciding factor behind CBC’s termination of Ghomeshi before any of the accusations had been made public? Did the termination follow proper procedure? Did Ghomeshi’s social media disclosure work to his detriment? Can employers rightfully terminate an employee for their private behavior, or is there more at stake here?
What happens when a very private matter turns very, very public?
The Termination
The London-born, Thornhill-raised Ghomeshi (who grew up not far from Rodney Employment Law’s offices) had been with the CBC for 13 years, serving for the past 7 as the host of the radio program Q. The show highlighted Ghomeshi’s relaxed interview format and attracted guests of high acclaim as well as international listenership. In recent years it had become the flagship program of CBC radio.
News first broke, on a day Ghomeshi was already scheduled to have off, that he was taking a personal leave from the broadcaster. At the time, commentators suggested the news might have to do with stress over losing Ghomeshi’s father weeks prior. Then, two days later, the CBC announced it had severed ties with Ghomeshi. Hours later, news came that he had retained Dentons LLP to file a legal claim, and the well-known PR firm Navigator who has since dropped Ghomeshi.
The Shocking Twist
As rumors began to swirl regarding the cause of Ghomeshi’s dismissal, Ghomeshi himself opened the floodgates wide later that evening with a 1600-word diatribe on his Facebook explaining the firing. In his post, Ghomeshi explained that allegations relating to his private sexual activities (think 50 Shades of Grey) with an ex-girlfriend, that were now coming to light through a freelance writer (and later The Toronto Star). Ghomeshi painted himself as the target of scandalous gossip, subject to untruths that his personal life included multiple instances of non-consensual relations with a number of women, and that he has lived with the threat of these stories being leaked to the media.
Ghomeshi claimed that one day before his departure he presented full evidence to CBC that the allegations of non-consensual sex were untrue. He alleges that CBC supported his evidence, and they were not concerned with legal implications over whether or not Ghomeshi had engaged in consensual relations. Rather, Ghomeshi writes, “they said that this type of sexual behavior was unbecoming of a prominent host on the CBC. They said that I was being dismissed for ‘the risk of the perception that may come from a story that could come out.’
The Law
There are a host of legal implications to this story, many involving the issue of consent and whether Ghomeshi’s actions could even be consensual. However, the story is also richly layered from an employment law perspective.
Ghomeshi’s filed documents claim $25 million damages for breach of confidence, another $25 million for defamation, and an additional $5 million dollars in punitive, aggravated and exemplary damages. In the claim, Ghomeshi alleges that by acknowledging publicly that they had become recipients of information that forced them to terminate the relationship, the CBC breached Ghomeshi’s confidence, and the sensitive personal information that he had shared with them about his activities.
Paramount to Ghomeshi’s case is his status as a unionized employee of the CBC. As a member of a union, Ghomeshi would be barred from suing civilly for a wrongful termination, and that the matter would instead go to a private arbitration. Furthermore, while there is no firm cap to damages for wrongful dismissal, $55 million dollars is an absurd figure by Canadian standards. Even if a civil suit were to be permissible, Ghomeshi would be unlikely to receive an award higher than 2 years of notice and likely much less based on his youthful age and viability in the job market. His best hope in an arbitration process would be an award for back-pay, which is far from the exorbitant amount in his claim.
However, by filing a claim, Ghomeshi has managed to put his side of the story on the record. Instead of hiding behind any private workplace investigations, he has chosen to come out swinging, loudly demonstrating that he will not be victimized by what he insists are false allegations. Also, Ghomeshi’s statement of claim is privileged, meaning that he cannot be sued for what goes on the record, even if it does attack his former employer.
The Employer
Since the story broke, numerous women have come forward with similar, disturbing stories of aggressive sexual abuse by Ghomeshi, and emphasize that the instances were, contrary to Ghomeshi’s assertions, non-consensual. For their part, the CBC has stated publicly they made the decision to terminate based on ‘graphic evidence’ that Ghomeshi had harmed a women, which Ghomeshi himself presented while attempting to assert his innocence.
Allegations have also surfaced that Ghomeshi’s lurid conduct extended into the workplace, and that co-workers and potential employees may have been among his victims. A recent account suggests that rumors of sexual impropriety have dogged Ghomeshi at the CBC for several years. Although he began to make management aware earlier this year that there may be trouble ahead, “his accounts to the CBC were relatively unspecific, even as executives asked pointed questions.” While Ghomeshi claims to have provided CBC with full evidence before his termination that all acts were consensual, CBC management was reportedly ‘taken aback’ with the brutal nature of Ghomeshi’s evidence. When he refused at all opportunities to repent for his actions, he was terminated.
CBC has now invited a third-party investigator to conduct a thorough workplace investigation, however it is clear that serious damage has already been done. Thorough workplace investigations must be conducted by a qualified party (or third-party expert) at the moment serious allegations such as these arise, and no later. While it may be impossible in this case to know exactly who knew what information and when, properly-conducted workplace investigations have the power to be proactive and beneficial to all parties instead of reactive damage control.
What Employers and Employees Can Learn
The news stories about Ghomeshi and the CBC continue to spiral with each passing day. Initial support for Ghomeshi’s innocence in the absence of proven allegations has dwindled as women (and men) continue to come forward, some willing to bravely share their identity along with their story. For his part, Ghomeshi has said on Facebook that he “intends to meet these allegations directly,” while CBC is barred from speaking on the matter due to legal proceedings.
There are several key lessons that both employers and employees can learn from this situation. An employee’s right to privacy is key, and should be maintained especially when dealing with sensitive information. With that said, employers must take any allegations of harassment seriously and deal with them immediately before problems rise to this scale. Properly-conducted workplace investigations are paramount and are part of the due diligence process companies should follow in these situations. It is also important that investigations are carried out in a manner that protects the sensitive nature of information and are careful to ensure that parties are informed of any explicit details only on a need-to-know basis. Furthermore, while employers must protect employee’s privacy, they must also protect their own business interests and the public broadcaster is an employer much like any other.
In this particular case, an already complex termination turned explosive when Ghomeshi released his side of the story through Facebook. In an attempt to vindicate his name, his choice to use social media to do so opened the door to the Toronto Star releasing their accounts of the initial allegations, all before legal proceedings commenced. As many employers know, social media has the potential to inflame any workplace situation. In this case, not only did social media likely backfire against Ghomeshi but it has made due process in a workplace investigation nearly impossible. In posting his story to Facebook, Ghomeshi effectively quashed much of the privacy he would have been able to maintain during a proper investigation.
Finally, workplace investigations should be conducted by a qualified party no matter the size or scale of the business. If you are an employer looking to bring in a qualified workplace investigator, or an employee looking to inquire about any potential harassment, we can help. Contact us today for more information, and one of our qualified experts will be happy to assist you.
Blog Post by Shaun Bernstein