On October 27, 2014 the CBC terminated Mr. Ghomeshi’s employment. Later that day he disclosed some intensely private information about his sex life in a public Facebook post.
On October 28, 2014 I posted a blog outlining some of the issues that arose out of his termination.
Since that time Mr. Ghomeshi has filed and withdrawn a $ 55 000 000 law suit against the CBC.
Mr. Ghomeshi has also filed a grievance under his collective agreement challenging his termination. If his grievance proceeds to arbitration, he will almost certainly be seeking reinstatement with full back pay.
On November 4th, the CBC hired an outside investigator who will speak to any employee who wishes to file a complaint against Mr. Ghomeshi. I have also posted a blog which contains my thoughts on this investigator’s mandate.
The Latest Development: Criminal Charges
In the last month, a number of women contacted the police who conducted an investigation.
On November 26, 2014 Jian Ghomeshi was charged under the Criminal Code and was released on $ 100 000 bail. He will face four charges of sexual assault and one charge of overcome resistance – choking
What Happens Next
The Grievance. Mr. Ghomeshi’s grievance will almost certainly not proceed any further until the criminal proceedings are concluded.
Regardless of the outcome of the criminal proceedings, the union must decide whether or not to submit Mr. Ghomeshi’s grievance to arbitration. If the union genuinely believes that the CBC can prove just cause for termination then the union is under no obligation to take Mr. Ghomeshi’s case forward. I would not be surprised if the union decides to drop Mr. Ghomeshi’s case if he is found guilty.
If the union takes Mr. Ghomeshi’s case to arbitration then an adjudicator must decide whether or not the CBC had just cause to discipline Mr. Ghomeshi and if so whether or not termination was the appropriate punishment. If he is found guilty, I believe most arbitrators would uphold the discharge in this case.
The Criminal Charges. The CBC will closely watch the criminal proceedings and will try to use any evidence that is submitted to support the discharge at any arbitration that subsequently takes place.
Potential Civil Case Against Mr. Ghomeshi. Any woman who was sexually assaulted by Mr. Ghomeshi has two years from the date of the assault to commence a civil action against him for the tort of sexual assault. To date, there are no reports that any woman has done so.
Potential Human Rights Case Against the CBC & Mr. Ghomeshi. Any woman who was sexually harassed or subject to a poisoned work environment has 12 months to file a complaint under the Canada Human Rights Act from the date the discriminatory act took place. To date, there are no reports that any woman has done so.
For the past 25 years, Doug MacLeod of the MacLeod Law Firm has restricted his law practice to employment and human rights law. He represents employers and employees. 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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