In a series of stunning developments on October 26, 2014, the CBC announced that information had come to the Corporation’s attention which caused it to terminate the employment of radio host Jian Ghomeshi. This prompted a press release from Mr. Ghomeshi’s lawyers, that he intended to file a lawsuit seeking $50,000,000 in damages, as well as a grievance seeking reinstatement. The dispute centres on Mr. Ghomeshi’s private sex life.
The merits of each parties’ position have not been tested, and will have to be determined in an appropriate forum. It seems clear, however, that Mr. Ghomeshi’s lawsuit will not survive a jurisdictional challenge. The CBC and Canadian Media Guild are parties to a collective agreement. Mr. Ghomeshi is a member of the Union. The collective agreement contains a number of provisions relevant to the dispute.
Article 11.5 states that “There shall be no dismissal of a permanent/continuing employee except for just and sufficient cause.” There are detailed disciplinary procedures, providing for a meeting with the employee and Union representative at which there will be “a full discussion” between the parties followed by notice of the employer’s decision. Article 11.6 states that “No dismissal of an employee, except in the case of gross misconduct, shall take place until the procedures outlined in this Article have been followed.”
Where a settlement is not reached in this early process, the matter can proceed to a grievance before an Arbitrator. Article 16.1 sets forth the parties common understanding as to the purpose of those procedures: “to ensure that disputes arising out of the application, interpretation or alleged violation of this agreement are dealt with in an orderly and expeditious manner.”
Article 16.7.1 provides that the parties will compile a list of twelve Arbitrators, eight of whom must be in Toronto. Whichever Arbitrator is next in line and available to hear the grievance, will Arbitrate the matter. Article 16.7.5 states that “Grievances related to dismissals shall be referred directly to full arbitration, which will be an expeditious process.” The selected Arbitrator must be available to hear the grievance within thirty business days, and must deliver a decision within twenty business days of the completion of the hearing. Timelines can be extended on consent.
If the parties did not intend for their employment related disputes to proceed through this dispute resolution process, why would they go to the trouble of establishing such elaborate procedures? In fact, the courts have repeatedly held that employment disputes in a unionized workplace must be dealt with by way of the grievance process and not in court. Legislative policy is to the same effect. Section 57(1) of the Canada Labour Code states: “Every collective agreement shall contain a provision for final settlement, without stoppage of work, by arbitration or otherwise, of all differences between the parties to or employees bound by the collective agreement, concerning its interpretation, application, administration or alleged contravention.”
Mr. Ghomeshi’s claims for defamation, breach of confidence and breach of good faith are, in their essential character, disputes that arise out of the termination of his employment. Dressing them up as something different doesn’t change that. My guess is that the CBC will bring a court application to stay or dismiss the action. Based on legal precedent, they will almost certainly be successful.