Canada: Jian Ghomeshi’s CBC Lawsuit Is Hopeless — Even If He’s Telling The Truth

Last Updated: October 30 2014
Article by Howard Levitt

Jian Ghomeshi's $50-million lawsuit against the CBC has everything to do with strategy and PR — but nothing to do with legal entitlement.

Quite apart from the fact that his actual damages likely do not exceed 2% of that figure, unionized bargaining-unit employees (as CBC broadcasters are) can't sue in court for wrongful dismissal.  This suit will almost certainly be quickly struck down by the courts without Ghomeshi recovering a penny.

Whether or not the violence he is accused of was consensual, as he maintains, or criminal, as some unnamed accusers are reportedly claiming — none of the allegations being proven — this is the era of Ray Rice, Donald Sterling and Brendan Eich: No major corporation relying on public goodwill will permit itself to be saddled with household name "talent" that could destroy or even substantially impair its brand. And there aren't many judges or arbitrators who would argue that they should be forced to.

The most interesting aspect of this case is that Ghomeshi, while protesting loudly about the purported violation of his "private life," proceeded to write a close to 1,000-word missive delving into some pretty explicit aspects of, well, his private life.

The fact that Ghomeshi has hired the Navigator PR firm creates the impression, to this observer — possibly unfairly — of some disingenuity. One wonders why Ghomeshi, a master of media himself, felt he needed assistance.

Presumably not because he wants the unvarnished truth to come out, unedited and unembellished. It is more likely that he wants to colour the news with his own spin, in anticipation of it later coming out, so that it will be then interpreted most favourably to him.

There is a risk in that. CBC's first reaction was "no comment." But, depending upon what the truth is, the corporation might be well advised to now respond in kind as a way to preserve its own reputation. That is what I generally advise my employer clients to do.

If the CBC has convincing evidence that Ghomeshi was involved in non-consensual activities that constituted violence against women, he becomes a poisoned chalice and executives had no choice but to release him. The courts in Canada, and even arbitrators, have become increasingly sensitive to the impact of personal employee misconduct on employers' brands, and it is irrelevant if it occurs outside of the workplace. In an age of social media — tools that Ghomeshi uses skillfully — there is no such thing as private time versus work time. He had to know that.

In this era of obsession with privacy, there is actually less privacy than ever. Every employee should assume that everything he or she does, inside work and outside, public or private, could end up being revealed to an employer. Any other assumption is foolhardy.

It is interesting that Ghomeshi is issuing a $50-million claim against CBC, while simultaneously declaring his historic loyalty to and love for it. The reality is, as he must also know, that suit will go nowhere. As a unionized employee, he cannot sue the CBC in court but is stuck with having to grieve through the arbitration process.

It is a common misapprehension that many unionized employees have (although it's hard to believe of Ghomeshi). They mistakenly believe that being part of a union provides them protection. In fact, it is the reverse: Unionized employees cannot sue their employer for anything flowing from the employment relationship, whether it's wrongful dismissal, constructive dismissal or anything else. Ghomeshi surely wishes he was not part of a union.

When a case goes before an arbitrator, historically, in the event that the employer cannot show cause for firing, arbitrators have almost invariably reinstated employees — meaning that, if the matter weren't already settled within a year or two (as it almost assuredly will be) Ghomeshi would have found himself back in his public broadcasting chair.

But that's history. Things have begun to change: Recent trends are against him in this respect, too.

Arbitrators (and judges) have increasingly resisted reinstating employees who, in the public mind, represent the employer and its goodwill, including radio and television hosts. It is one thing to force a factory to rehire an assembly-line worker. But arbitrators are more loath to force a television station to put someone on the air as its representative who no longer reflects its style, approach or desired image.

So although Ghomeshi may eventually be cleared of the allegations — which may yet be proved spurious — he will not be back hosting.

Even if Ghomeshi can prove all the alleged sexual scandals he's accused of were entirely consensual, he likely has no case: If the activities were viewed as being so outside the norms and tastes of CBC listeners, he will likely not be reinstated, since doing so could hurt CBC listenership.

So even if Jian's protestations of consensuality are true (and we have no cogent information as of this point), it will not be enough. This is really an object lesson in the fact that employees have no real privacy rights and should operate on the basis that all of their actions, wherever they occur, could be discovered by employers and, worse, become embarrassing fodder for the Twittersphere and op-ed pages. It happened to Rice, Sterling and Eich; and it's happening right now to Jian Ghomeshi.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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