The recent termination of Jian Ghomeshi’s employment by the Canadian Broadcasting Corporation (the “CBC”) from popular radio program “Q” has raised a number of important moral questions about the allegations against the former host. However, the situation also raises fundamental legal questions, including whether an employer may terminate an employee based on his or her private activities.
Can Employees be Terminated for Private Activity?
According to various news reports, as well as statements from the CBC and Mr. Ghomeshi, the termination stemmed from information CBC had obtained regarding Mr. Ghomeshi’s sexual relationships with numerous women and forthcoming allegations of sexual assault. While it may be surprising to some, there is a recognized legal foundation for the CBC’s actions in the circumstances.
In Canada, employees owe a number of duties to their employers, including a duty to act with good faith and fidelity to the employer. Generally, where an employee’s alleged misconduct interferes with or prejudices the safe and proper conduct of the employer’s business, it may serve as grounds for discipline and, in certain cases, the termination of the employment relationship for cause (and without notice or payment in lieu of notice). This is true even where the misconduct (or alleged misconduct) occurs outside the workplace, and on the employee’s private time. However, in those cases the damage to the employer’s business would usually be expected to stem from the loss of public confidence that may result in the event that the employee’s misconduct were to be associated with the employer’s business.
For example, in Canadian Imperial Bank of Commerce v. Boisvert, [1986] 2 F.C. 431, the Federal Court of Appeal upheld the termination of a bank teller that established an extra-curricular relationship with a convicted thief, thereby jeopardizing the interests of the employer. In Kelly v. Linamar Corporation, 2005 CanLII 42487 (ON SC), the materials manufacturer for a company with an “excellent reputation in the community” was terminated after being charged with possession of child pornography. The Court upheld the termination, finding that the employer had built up a good reputation in the surrounding community, and stating “a company is entitled to take reasonable steps to protect such a reputation and the termination of the employee was just such a step” (at para. 31).
These same principles apply equally in a unionized environment, such as appears to be the case with Mr. Ghomeshi, where employees may only be terminated for “just cause”. The concept of “just cause” can be an extremely high bar for employers to meet. However, labour arbitrators have concluded that acts that detrimentally affect the employer’s reputation or render an employee unable to properly discharge his or her employment obligations may constitute “just cause” to end the employment relationship (see Bell Aliant Regional Communication L.P. (2010), 203 LAC (4th) 407 (Archibald)).
The Take Home Lesson
Ultimately, whether an employee’s conduct outside of work may jeopardize his or her employment relationship will turn on the degree of responsibility exercised by the employee, as well as the employer’s notoriety and the degree to which, if at all, its reputation in the community will likely be affected by the employee’s alleged conduct. However, where such conduct suggests that the employee has characteristics or attributes that are incompatible with the employer’s business, the Court or arbitrator may find that the employment relationship cannot continue and that the employer may dismiss the employee for cause, without notice, payment in lieu of notice or, in the arbitral context, reinstatement.