Jian Ghomeshi scandal: Is it a matter of 'employers in the bedroom?'
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As news broke over the weekend of Jian Ghomeshi’s firing from the CBC — followed by allegations of violence made public by the Toronto Star — reaction on social media was swift as many questioned the legal right of an employer to wade into an employee’s private life.
The popular radio personality alleged in a statement Sunday he was fired from the CBC because the public broadcaster believed his sexual behaviour was “unbecoming of a prominent host.”
The statement, followed by a $55-million lawsuit Ghomeshi’s lawyers filed against the CBC alleging breach of confidence and bad faith, had many fans jumping to his defense on Twitter and Facebook.
Some argued that Ghomeshi’s sex life is none of his employer’s business, but legal experts say the rule of law is not always so black and white.
Richard Johnson, a Vancouver employment and human rights lawyer, said an employer would have a “tough job” dismissing an employee because of conduct in their free time— that is, as long as the employee doesn’t have a clause in their employment contract dictating conduct outside the office.
“It’s similar to how Trudeau said the state has no place in the bedrooms of the nation,” he said, referring to Prime Minister Pierre Trudeau’s famous words in 1967. “(Employers) have no right to dictate what you do in your free time.”
But Toronto employment lawyer Stuart Rudner said, with the rise of social media, people can no longer assume that what they do in their free time is 100 per cent their own business.
“We’ve seen many cases over the last few years where people have posted things online and either been disciplined or lost their job as a result,” he said.
Rudner said an employee can be terminated at any time without cause, as long as they receive severance pay and notice. The situation becomes more complicated, however, if an employee is terminated with “just cause,” he said.
In the case of Ghomeshi, Rudner said the CBC’s lawyers could argue in theory that Ghomeshi’s conduct away from work could tarnish its reputation, in which case they may have just cause to dismiss him.
However, to prove that Ghomeshi’s conduct warrants dismissal, Rudner said the CBC would need to look at “all relevant circumstances” surrounding his employment, not just the alleged misconduct.
That includes the length of their employment, the nature of their job and any prior misconduct or discipline, he said.
“If you’re looking at somebody who was essentially a face of the organization, if they’re doing something that could impact the reputation of the organization and make them look bad, then arguably there would be just cause, at least for discipline," he said.
But, Rudner said, Ghomeshi’s lawyers could argue that, because the allegations of violence haven’t been proven true, his conduct is not considered so egregious that it would warrant being fired.
“Dismissal is obviously a very serious step,” he said. “Assuming that the CBC can prove he engaged in conduct that hurt his reputation, they can probably just discipline him. But it’s hard to say if it’s enough to dismiss for cause.”
Whether the CBC has a right to terminate Ghomeshi's employment has yet to be determined, but Johnson said the $55 million cost for damages that his lawyers have attached to his civil suit does send a strong message to the public broadcaster.
"It's, for lack of a better term, going for the jugular," he said. "That's an extraordinarily high reward, and in employment law cases, we certainly don't see anything that would even approximate $50 million.
"I would be surprised if they actually were successful getting something in that amount," he said.