Sunday, 24 June 2018

Under Arrest and Suddenly Unemployed: The Intersection of Criminal Law and Employment Law

Can you be fired from your job simply for being arrested? That is to say, can your company fire you before the court determines whether or not you are actually guilty?

As is more fully explained on my page What is Wrongful Dismissal, the answer to that question is “yes” for those workers who are:

  1. working in the province of Ontario;
  2. subject to the laws of the province of Ontario, (on this point see Which Laws Apply?); and
  3. not subject to the terms of a collective bargaining agreement (i.e. not a member of a union).

And the reason why your company can fire you, or otherwise take job action against you, is because employers in Ontario are generally not required to demonstrate that they had “just cause” to terminate an employee’s employment. Workers across this province can, and do, lose their jobs every day without having done anything wrong.

The question of whether a worker should lose his or her job before the conclusion of a criminal matter is a separate question altogether. Comments on such question are welcomed below.

The Roberto Osuna Case

This post is being authored on a beautiful Sunday morning, shortly after the announcement of Major League Baseball Commissioner Robert D. Manfred Jr. that Toronto Blue Jays’ pitcher Roberto Osuna had accepted a suspension without pay through August 4, 2018, a period of 75 games, for violating the league’s Joint Domestic Violence, Sexual Assault and Child Abuse Policy.

The decision and announcement are an imperfect fit because Roberto Osuna is subject to the terms of a collective bargaining agreement. I leave for another day whether Ontario law would apply to him.

In any event, what we have is a situation whereby a worker, Osuna, is subject to a form of workplace discipline before the decision in the criminal case. As for how long that may take, see the post by Toronto criminal defence lawyer, Alison Craig: A Lawyer’s Take: The Days, Weeks, and Months Ahead for Roberto Osuna.

The Jian Ghomeshi Case

Similarly, and according to that which is posted to Wikipedia as of the authoring of this post:

In the spring of 2014, Jian Ghomeshi, once the host of CBC’s radio programme “Q”, advised his employers at the CBC that the Toronto Star was looking into allegations by an ex-girlfriend that he had engaged in non-consensual rough sex and that he denied this accusation.

In early summer of 2014, reporter Jesse Brown contacted the CBC and warned that Ghomeshi's behaviour may have crossed into his work environment. The CBC investigated and concluded that there were no workplace complaints against Ghomeshi. According to an investigation by the CBC's The Fifth Estate, "almost all known staffers on... Q said they were not contacted by CBC management as part of any investigation." Ghomeshi denied the accusations again and the Toronto Star declined to go forward with the story at that time.

In October 2014, Brown tweeted that he was working on a story that would be "worse than embarrassing for certain parties". Brown later said that he was referring to another story but Ghomeshi requested a meeting with CBC on October 23. During that meeting, the CBC viewed what it later described as "graphic evidence that Jian had caused physical injury to a woman". According to Vice, Ghomeshi showed his bosses lewd text messages on a CBC-owned phone and graphic personal sex videos.

On October 24, Ghomeshi announced he was taking an indefinite leave of absence from the network to deal with personal matters. Two days later, the CBC terminated Ghomeshi's employment, with a CBC spokesperson saying "information came to our attention recently that in CBC's judgment precludes us from continuing our relationship with Jian." Ghomeshi subsequently released a "lengthy Facebook post" saying his dismissal was motivated by fear of an alleged smear campaign by an ex-girlfriend that according to Ghomeshi could release private details about his sexual life. Ghomeshi also said he refused an offer by the CBC to "walk away quietly." Chris Boyce, the head of CBC Radio, denied that such an offer was made.

Ghomeshi filed a $55 million lawsuit against the CBC, alleging that the broadcaster misused "personal and confidential information provided to it in confidence". He also filed "a union grievance alleging wrongful dismissal and defamation," and stated through his lawyer that he "does not engage in non-consensual role play or sex and any suggestion of the contrary is defamatory." Ghomeshi withdrew his lawsuit on November 25, 2014. The terms of settlement stipulated that Ghomeshi will pay the CBC $18,000 in legal costs.

On November 26, 2014, following termination by the CBC, Ghomeshi turned himself in to Toronto Police and was charged with four counts of sexual assault and one count of overcoming resistance by choking, after an investigation that began on October 31, 2014. The charges concern three separate women. He appeared in court on the same day and was released on $100,000 bail on the conditions that he surrender his passport, stay within Ontario and live with his mother.

Ghomeshi appeared in court again on January 8, 2015, and was charged with three additional counts of sexual assault related to three more women. In a court appearance on February 26, 2015, a judicial pretrial was set for March 27, 2015, and was later put over to April 28, 2015. His lawyer, Marie Henein, stated that he would plead not guilty to all charges. On October 1, 2015, Ghomeshi pleaded not guilty to one count of choking and four counts of sexual assault.

The trial of Ghomeshi began on February 1, 2016, and lasted eight days. On March 24, 2016, the judge acquitted Ghomeshi of all charges on the basis that there was insufficient evidence to establish proof beyond a reasonable doubt. The inconsistency and "outright deception" of the witness' testimony had irreparably weakened the prosecution's case. Judge William Horkins accused the complainants of "lying or trying to conceal evidence from the court".

A second trial for one additional charge was scheduled for June 2016. On May 11, 2016, however, the Crown withdrew the last remaining charge, re: the alleged sexual assault against Borel, after Ghomeshi signed a peace bond which does not include an admission of guilt. (The publication ban as to the name of the victim, Borel, was lifted on May 11, 2016.) According to Borel, Henein approached Borel's representation to ask for an alternative to a trial, and after several exchanges Ghomeshi agreed to apologize to Borel and did so formally.

In April 2017, Ghomeshi launched a new creative endeavor called The Ideation Project. The Ideation Project is a music and podcast series featuring all original words, music, recordings and production by Ghomeshi, which has Ghomeshi commenting on a range of cultural and newsworthy topics. Ghomeshi launched The Ideation Project with a monologue called "Exiles" on the topic of what it means to not have a homeland. Season 1 includes 13 "tracks" on various subjects. The show was launched on a web network associated with Rush Limbaugh, and the Globe & Mail reviewed the web series as a "less than triumphant return" despite what they refer to as his slick voice and delivery.

Ghomeshi is also an imperfect fit as, again, he was subject to the terms of a collective agreement and the laws of Ontario clearly did not apply to him as he worked in radio broadcasting, and therefore the laws of Canada would apply. (If that latter statement is confusing, again see: Which Laws Apply?)

Also, I am unsure the result of his wrongful dismissal grievance. I suspect that we may never know what actually comes of that.

In any event, the point remains that job action was taken well before the resolution of the criminal matter and the result in that case was a finding of not guilty by the court.

What Does the Law Say?

As I mentioned at the outset of this post, generally speaking, employers who wish to terminate the employment of one of their employees without alleging just cause for termination may do so. The employee’s sole remedy in that case is typically limited to a payment in lieu of “reasonable notice.”

But what if an employer wishes to allege that simply being charged with a crime is cause for termination? Can an employer do that?

First, it is interesting to note that in two cases, labour arbitrators found that the failure to disclosure the existence of criminal charges, even where the employer had a clear policy requiring the same, was not just cause for summary termination: Telus Communications Inc. v TWU, 2012 CarswellNat 4796; Winnipeg Regional Health Authority and MNU (Ahmed), 2016 CarswellMan 90.

Second, employers wishing to rely on allegations of wrongdoing would be prudent to conduct their own, independent, investigation into the allegations, if the same is to be the reason for dismissal. Not all allegations will be true and not all truthful allegations will be found to “establish proof beyond a reasonable doubt”, i.e. meet the criminal test for guilt.

Takeaways for Employers with Labour Pains

The key takeaway for employers is that before taking action against an employee, whether by way of a termination or suspension, employers need to first review the terms of their employment contracts (if any) with their employees. If there are contractual rules that need to be followed: follow them.

Where no written contract exists or where such contract is silent on the issue, employers would be prudent to slow down and seek professional legal advice. In short, while allegations of criminal malfeasance can be scandalous and salacious, such allegations, even if they result in an arrest, may not always be true. While one can certainly appreciate the desire to avoid being painted with the same brush, or being found guilty by association, employers need to also be mindful of their legal obligations to their employers.

Employers can and will have options. For example, if an employee will be absent from employment for an extended period of time, perhaps because he or she is being held in custody awaiting trial, employers may be able to terminate the employment relationship on account of “frustration of contract.” Actual legal advice, however, would be necessary before doing anything.

If you are an employer and one of your employees has been charged with a criminal offence, contact the experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP; we would be happy to be of service to your business or organization.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.

Sean P. Bawden is a partner with Kelly Santini LLP, located in Ottawa, Ontario, Canada. He practices in the areas of employment law and civil litigation. He has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College in Ottawa.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Photo Credit: (c) istock/vladans

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