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CANADIAN HR LAW
Oct 30, 2014

Investigating misconduct

Jian Ghomeshi case highlights issues around disciplinary process
    

By Stuart Rudner

Over the course of the last few days, my partner and I have been asked to comment on the Jian Ghomeshi situation repeatedly, and you can see some of those comments here: GlobeandMailmetronews and citynews.

I was quite intrigued that CityNews wanted to discuss the situation from a very different perspective: the alleged victims of Ghomeshi’s behaviour, as well as the fact that that this case is, at least so far, playing out more on social media than in the courtroom.

To begin with, the impact on the women who alleged they were subjected to non-consensual abusive sex by Ghomeshi is incalculable. As we know, they made the decision not to file complaints with the police or pursue criminal prosecution. Unfortunately, it is well-recognized that individuals who are victimized by rape, assault or other such conduct often have legitimate reasons for choosing not to pursue their attacker legally or to even publicize what they experienced.

However, when Ghomeshi posted his now infamous Facebook recount of the reasons why he says he was dismissed, he brought those women into the public eye and both implicitly and explicitly impugned their reputation.

A review of the online discussions reveals many Ghomeshi supporters have attacked these women for their failure to file a complaint, arguing this failure "proves" that Ghomeshi did nothing wrong and their allegations are false.

In his post, Ghomeshi did his best to attack the credibility of his accusers, referring to one as a “jilted ex-girlfriend." One anonymous online poster perhaps put it best when he referred to the women who were allegedly victimized as “collateral damage" in the battle between Ghomeshi and the CBC.

Notably, in the last 24 hours, several of these women have come forward. Unfortunately, they may have been left feeling as though they had no choice.

With respect to the fact that Ghomeshi took to social media in order to present his case before his Statement of Claim was filed, I provided some comments to CityNews regarding how such behaviour might be perceived in the scenario where an employee was being investigated for alleged misconduct.

As I explained, while in the Ghomeshi case, he had already been dismissed before he publicized the situation, it is much more typical to see situations where an employee is accused of engaging in misconduct, and remains an employee while the employer undertakes an investigation.

As I have commented on repeatedly (see, for example, this post or this post ), our courts have made it clear that employers must fairly and objectively investigate any allegations or suspicions of misconduct before engaging in discipline. Our firm advises employers in the course of investigation, and also advises employees under investigation.

One point that we make is that, in the course of investigation, confidentiality is sacrosanct. Anyone who is involved, be they complainant, accused or witness, is warned she is not to discuss the situation outside of the investigation.

As the author of You’re Fired! Just Cause for Dismissal in Canada, a text discussing when employees can be dismissed for cause in Canada, I have repeatedly made the point that when assessing whether summary dismissal is appropriate, employers cannot simply consider the alleged misconduct in isolation. Rather, our courts have wholeheartedly endorsed the contextual approach, which includes consideration of all relevant circumstances.

One thing that I have observed in the course of reviewing all just cause dismissal decisions in Canada is that in recent years, courts have focused on the accused’s response when confronted with allegations of misconduct. This is not surprising, given that the ultimate question that must be answered is whether the employment relationship has been irreparably harmed, or whether the employee should effectively be given another chance.

The court will have to consider whether the employee has given the employer good reason to conclude that it could no longer trust him. As a result, an employee who is honest and upfront when confronted with allegations of misconduct (or, even better, before being confronted), offers an apology and reasonable assurances it will not happen again, is more likely to be given a second chance, all else being equal.

Conversely, an employee who lies, continues to deny any wrongdoing, takes active steps to cover up evidence of the wrongdoing and otherwise behaves in a manner that suggests he is untrustworthy, is more likely to give a court good reason to conclude that he should be dismissed.

Taking the Ghomeshi situation into account, if an employee under investigation was to go on social media and do what he did, breaching confidentiality, wholeheartedly denying any wrongdoing, attacking his accusers and embarrassing his employer, that would go a long way toward satisfying a court that the employment relationship could not be resuscitated and that dismissal was appropriate.

Of course, this is largely based upon the assumption that the accusations against the accused are true. One can hardly fault an individual for denying any wrongdoing if, in fact, she is innocent of any wrongdoing. However, the point to be remembered is that even where an employee is found to have engaged in misconduct, that does not automatically mean she can be dismissed for cause. However, if she exacerbates the situation by publicly refusing to admit any wrongdoing, her legal position will certainly be weakened.

I have often written about the impact of social media on the employment relationship. It will clearly have an impact on the conduct of investigations in the future, as well as the conduct of litigation, as it appears to have in the Ghomeshi case. He, as has been reported, received both legal advice and advice from a public relations firm. Most individuals will not have that luxury and should think very carefully before taking to social media in order to air their work-related grievances or discuss allegations made against them, particularly where there is an ongoing investigation.

    
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