Last week the CBC fired another one of its high profile hosts, Evan Solomon.
According to news reports, Mr. Solomon ran a part-time business in his spare time and earned income by helping an art dealer sell paintings. CBC knew about the business but claims it did not know the full extent of Mr. Solomon’s involvement in the business until last week.
Apparently a dispute arose concerning the amount of commission the art dealer owed Mr. Solomon for a particular sale. This dispute was recently settled. Almost immediately afterwards, some one leaked Mr. Solomon’s relationship with the art dealer to the Toronto Star who contacted the CBC. Mr. Solomon was terminated the next day.
Mr. Solomon’s Grievance Rights
Mr. Solomon is a union employee so he can file a grievance claiming he was fired without cause and he can seek reinstatement with full back pay.
If Mr. Solomon was a non-union employee and he filed a wrongful dismissal action the same issue would arise: Was his moonlighting just cause for termination?
Can an Employee Moonlight?
A full-time employee is generally entitled to have a part-time job or operate a side business as long as these outside activities do not result in a conflict of interest with his or her full-time job. There are exceptions to this general rule.
An employer can, however, limit an employee’s right to take on another job or earn self-employment income by contract. For example, some employment contracts include a clause, which states an employee will not engage in other employment or in any self-employment without the employer’s prior written consent.
Similarly, some employers require all new employees to sign a conflict of interest policy or a Code of Conduct policy as a condition of employment.
In this case, the CBC has alleged that Mr. Solomon violated its conflict of interest and ethics policy and that his actions were inconsistent with journalistic standards and practices.
One of the guidelines in the CBC’s Conflict of Interest and Ethics Policy states: Employees must not use their positions to further their personal interests. As far as this guideline is concerned, does the CBC need to prove that Mr. Solomon offered to interview someone on his show on the condition that the person bought a piece of art from him? If so this seems unlikely. Not the kind of thing a former Governor of the Bank of Canada or a former CEO of Blackberry would likely do.
From the outside looking in it appears that CBC host, Amanda Lang’s alleged conflict of interest involving RBC was much worse that Mr. Solomon’s alleged transgressions yet CBC stood by her and fired Mr. Solomon.
I am not aware of the standards of journalism that apply to this case. I assume one such standard is the requirement to disclose personal or business relationships with interviewees if you are hosting a TV show although I suspect interviewers like Peter Mansbridge knows many of the guests he interviews and he does not disclose the full extent of the relationship in each interview. For example, if he has played golf with someone, or vacationed with someone, or been paid to speak to someone’s company before an interview is he required to disclose this information to CBC or to the audience at the beginning of the interview?
If Mr. Solomon interviewed someone who paid him a commission for the sale of art and he didn’t disclose this relationship to the CBC then there could be a problem. In this regard, it appears that Mr. Solomon may have sold art to the former CEO of Blackberry but according to news reports this person declined Mr. Solomon’s request for an interview.
The Devil is In the Details
As in most legal cases, the devil is in the details. If Mr. Solomon grieves his termination, the threshold issue will be whether Mr. Solomon’s outside activities justified any discipline at all. (i.e Did he breach the CBC’s conflict of interest policy and ethics policy?)
If so, the next issue is whether termination was a disproportionate or an excessive response to the misconduct. If so, the arbitrator hearing the case can substitute a lessor penalty.
What Will Happen to Mr. Solomon: My Prediction
I think Mr. Solomon will file a grievance under the CBC’s collective agreement.
Given his length of service, clean disciplinary record (assuming this is the case), and his immediate and heartfelt apology, I would not be surprised if an arbitrator reinstated Mr. Solomon to his position at the CBC. If however he materially lied to the CBC about his role in his side business then the result could be different because it would be difficult to maintain the trust that is needed to continue the employment relationship.
For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising and representing employers in connection with employee terminations. If you have any questions, you can contact him at 416 317-9894 or at [email protected]
In the recent decision of Andros v Colliers Macaulay Nicolls Inc., the Ontario Court of Appeal (“OCA”) found yet another termination clause to be unenforceable. In this decision, the OCA reaffirmed and clarified various principles surrounding the enforceability of such clauses.
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