For Ghomeshi and Others; it's either Union or Legal Representation, not both
It is reported that Jian Ghomeshi has dropped his civil suit against the CBC arising from his termination and that legal costs are going to be paid by him to the CBC. Regardless of the circumstances or reasons for Ghomeshi’s termination, for employment lawyers, that news is no surprise at all.
Ghomeshi was a member of a union. The law has been quite clear for many years. If you are a member of a union your only legal representative with respect to employment issues is your union.
In my practice, I am contacted often by members of unions wanting to retain legal counsel. I rarely accept those requests for an appointment because the end result is always the same: I end up explaining that there is nothing a lawyer can do for them and that they have to use their union grievance process. That news is very frustrating to many people. Sometimes they have little faith in the union. Too often, they don’t feel the union communicates well with them or is on their side. Those feelings, however, do not alter the law.
The law is the same whether you are famous like Jian Ghomeshi or working in a factory. In all but the rarest of circumstances, if you retain a lawyer to write a letter to your employer complaining about some workplace issue the employer would be justified in ripping up the letter and throwing it in the garbage.
Sometimes, people want me to file a civil suit against the employer. My advice has always been the same. I simply will not accept the retainer as I know it is a waste of the client’s money. The employer will no doubt immediately bring a motion to the court to have the action dismissed and costs awarded against the employee for having brought an unfounded civil suit in the first place.
Labour law legislation recognizes the right of employees to be unionized and to be represented in their employment relationship by unions. But we can’t have it both ways. You do not get the benefit of the union and also the right to bring a civil action to the courts like non-unionized employees. It’s one or the other and that law is not going to change soon.
On some very rare occasions where there is a human rights issue involved, a complaint to the Ontario Human Rights Tribunal can be brought against both the employer and the union if the union is somehow condoning and employer’s Human Rights Code
violation. In those circumstances the union member can get their own lawyer.
A union member can bring a complaint to the Ontario Labour Relations Board claiming that the union has failed to fairly represent them. Winning one of these complaints is extremely difficult. It’s not enough to prove that the union is incompetent or delinquent. You basically have to prove that the union is out to get you or has not even turned its mind to your issue. Proving that the union simply made a decision not to pursue your complaint or grievance with the employer after having thought about it will get you nowhere. They have the right to choose how they use their resources.
Any union is only as strong as its executives and staff. If you think those people are not doing a good job, it’s time to start showing up at union meetings and consider running for the executive at the next election.
At the end of the day, Ghomeshi’s decision to bring a civil suit against the employer was probably well informed and he was probably advised of all of this. For public figures, however, sometimes spending some money to protect one’s reputation, knowing that the statement of claim your lawyer issues will get a lot of press, may be worth the money. If that was the strategy here, it’s up to Mr. Ghomeshi to decide whether it was money well spent. His criminal defense lawyer will want some money too.
Ed Canning practices labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. You can email him at firstname.lastname@example.org