Allan Rouben is a Toronto lawyer specializing in civil litigation and appeal cases. He can be reached via his website www.allanrouben.com, on Twitter @AllanRouben or by e-mail at arouben@bellnet.ca.
With announcement of the withdrawal of Jian Ghomeshi's $55-million claim against the CBC, a frivolous proceeding to begin with given his status as a union member, attention will now shift to the grievance of Mr. Ghomeshi's termination.
Many of the claims for damages made by Mr. Ghomeshi in the lawsuit will no doubt be advanced in the grievance as well. There are important differences, however, between the conduct of a lawsuit and the conduct of a grievance. In the lawsuit, Mr. Ghomeshi had carriage of the proceeding and was represented by the lawyer of his choice. It was up to him to give instructions on how the lawsuit should proceed, whether it should be settled and, if settled, on what terms.
In a grievance, carriage of the proceeding rests with the union, in this case the Canadian Media Guild. It is the party to the collective agreement with the CBC, and is charged with the responsibility of representing its members in grievance proceedings. The union hires the lawyer, and makes the decisions about whether a grievance should proceed to arbitration and, if so, whether it should be settled and on what terms. So long as the Canadian Media Guild acts in a manner that is not arbitrary, discriminatory or in bad faith, Mr. Ghomeshi would have no grounds to complain about the union's decision making in his case.
A further important difference between a lawsuit and a grievance is that, in the grievance Mr. Ghomeshi is entitled to seek the remedy of reinstatement. This complicates matters for the Canadian Media Guild. The Guild represents all CBC employees, and has to take into account the effect of the positions it might take and the potential outcome of a grievance on the wider membership. There seems little doubt that many, if not most, CBC employees would not wish to see Mr. Ghomeshi return to work. Other CBC employees, and members of the union, might be witnesses on behalf of the CBC at a hearing. If the outcome of the grievance were to have a negative impact on the wider membership, the Guild would be within its rights to decline to take the grievance forward to arbitration.
It seems to me that, even if Mr. Ghomeshi were to abandon the request for reinstatement, the Guild would still be within its rights to withdraw the grievance. The sexual assault allegations are bad enough. Coupled with the claims of a toxic work environment, the union might decide that the CBC had ample grounds for termination, and that the membership would not wish to be associated with a contrary view.
Grievances involving termination of a member's employment are among the most important a union must deal with. They are the ones that have the most impact on the affected employee. For that reason, if a Union withdraws a termination grievance, it must have a persuasive reason for doing so, one that will withstand the scrutiny of a labour relations board if the Union member challenges the decision. There are persuasive reasons for the Canadian Media Guild not to pursue Mr. Ghomeshi's grievance.