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Wrongful/Constructive Dismissal in a Unionized Context, OR: Why Jian Ghomeshi isn't getting $55,000,000.00 anytime soon.

The once-$50M case against the CBC is in fact $55 million now. It could be that this was to avoid the otherwise apt references to a certain pulp fiction trilogy, and not founded in any real law.

The Story so Far:

Howard Levitt, a labour and employment lawyer based out of Toronto wrote a great piece for the National Post on issues in employment law. His article contextualizes the employment/labour law aspects of the Jian Ghomeshi firing this week. The Globe was quick to review the legal aspect of the claim too, with a good report by Simon Houpt and Jeff Gray. 

Labour versus Employment Law:

As Houpt and Gray write in the Globe, an employee cannot both sue for wrongful dismissal and file a grievance through their union. But to clear that line up a bit, it's our opinion that a union member is actually unable to make the choice at all. A union member must go through the grievence procedure as outlined by their collective agreement. They cannot sue in Court for wrongful termination or constructive dismissal. As Levitt pointed out at the Post, the unionized employee cannot sue their employer for anything flowing from the employee/employer relationship.

Collective Agreement

I've been able to track a copy of what may be the Collective Agreement between CBC and the group Ghomeshi belongs to. I've attached it as a pdf below:

A quick note on the pdfs: I am constrained by the limits of blogger & my knowledge of available widgets, so to read these pdfs, you'll find it easiest to minimize the thumbnails on the left. I'm sorry about the need to scroll horizontally.

I also have a copy of the Statement of Claim filed in the Ontario Superior Court. You can read it here, or download it if you prefer:

In terms of the breach of confidence claims, which should still follow from the employment relationship it seems odd that Ghomeshi would want to then go ahead and get quite personal about it all on Facebook. I think the name for that move in show business/public relations is called the Letterman. If you want to give the post a read,it's here.

What I'm not sure about, is where the law intersects between defamation and unionized employees. No one so far has really written on that aspect, but by tomorrow I'm sure we'll have something more on that.

The take away here, is that a unionized employee will be bound to the collective agreement and the grievance process that is laid out in that agreement. That means that a union member cannot sue in civil court. They are bound by the agreement, and therefore don't have access to things like the remedies available in the court for wrongful termination or constructive dismissal. The grievance process and representation by a union is their remedy.

Remember, everyone's situation is unique. The blogs posted on this site are informational. They are not intended to be taken as legal advice for your situation. It is always a good idea to seek professional legal advice before making any decisions related to your particular case.

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