While none of us knows what will happen with the Jian Ghomeshi matter, let’s assume for the moment that he’s suffering from serious issues. When it comes to the employment law side of his predicament, the irony is that could be his best argument — that he is indeed sick.
Ghomeshi worked under a collective agreement, which means that, unlike a judge in court who has only one option in a wrongful dismissal case, an arbitrator has the power to impose different levels of discipline short of termination.
Such a power would allow an arbitrator to reinstate someone, for example, without full back pay or order some form of lost salary without reinstatement or even a future sum for lost prospective income.
The point is an arbitrator appointed under the terms of a collective agreement has options beyond simply the win or lose scenario in other wrongful dismissal actions.
All of this presumes the case is winnable to some degree.
While there has been no evidence that this is actually the case or that he would argue it, the likely only salvation for Ghomeshi is to acknowledge that he suffers from some form of psychiatric illness and seek treatment for it. Given a medical disability and presuming the as-yet unproven allegations are true, the CBC may well need to show it has accommodated him to the point of undue hardship.
To open the door to the accommodation issue, Ghomeshi needs to show adverse treatment due to a disability.
He thus must admit he has a medical disability. He then must show it has caused his alleged offensive behaviour. That is, he must establish a causal link between the disability and the misconduct.
The Ontario Divisional Court in Walton Enterprises v. Lombardi recently reviewed the first part of this test, namely that the employee prove a link between the addiction and the offensive conduct: “I note that in cases dealing with an employee who claims his or her misconduct was caused by a disability such as drug addiction or alcoholism, the employee has been required to prove a causal relationship between the addiction and the misconduct,” wrote Justice Katherine Swinton.
“Both the British Columbia and Alberta Courts of Appeal have held that an employee who engaged in misconduct that rose to the level of a crime could not prove discrimination on the basis of disability where the disability played no part in the employer’s decision to dismiss and the employee suffered no greater impact for the misconduct than any another employee would have suffered.”
The critical aspect is that a finding of liability doesn’t just require a link between the behaviour and the addiction but also a connection between the termination decision and the disability.
Arbitral decisions in Ontario haven’t applied the same test. These cases ask the singular question as to whether the disability was a significant factor contributing to the alleged wrongdoing.
In the 2013 decision of Ontario Nurses’ Association v. London Health Sciences Centre, the nurse in question had stolen narcotics and other drugs and falsified hospital reports. The arbitrator quoted with approval this passage from Collingwood General & Marine General Hospital (Smart): “It is clear that in order to be entitled to accommodation, any disabled employee, including one suffering from a dependence on drugs or alcohol, must accept and pursue necessary treatment to alleviate the effects of the disability. Where an employee accepts and pursues such treatment, then the employer will be required to accommodate the employee’s disability up to the point of undue hardship, particularly where the medical evidence establishes that the employee is fit to return to work. Even where medical evidence establishes that fitness to return to work is subject to conditions, an employer will be required to determine whether it can accommodate those conditions without suffering undue hardship.”
In this instance, the employer agreed the discharged employee had devoted herself to the task of her recovery after losing her job.
As to the duty to accommodate, the CBC would no doubt argue its public profile and international reputation preclude it from that degree of accommodation. That position is entirely debatable.
Ghomeshi’s case, presuming all of the as-yet unproven allegations have merit, would require his active admission of psychiatric issues as well as proof that a dedicated recovery plan is in place.
If he denies the allegations and maintains his innocence, he likely has no chance in his employment case. There’s just too much ammunition lined up against him.
David Harris, a former lawyer, is publisher of Employment Law Books (e-mploymentbooks.com) as well as author of Wrongful Dismissal, published by Carswell.
