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Employment & Labour

Work, private lives may no longer be separate: Cochrane

The scandal that continues to engulf fired CBC Radio host Jian Ghomeshi highlights an important trend in employment law related to the increasing blur between professional and private lives, says Toronto lawyer Michael Cochrane.

The impact of off-duty conduct on an individual's job has become part of the conversation around allegations faced by Ghomeshi, who has been accused of abusive behaviour by women through media reports.

Ghomeshi has said he plans to meet allegations against him head-on, noting he has engaged in role play and rough sex, but that it was always consensual, but the women allege otherwise. Three women have now filed abuse complaints with police.

“I believe we’re seeing that the time has passed where we can separate our work lives from our personal lives,” says Cochrane, partner with Brauti Thorning Zibarras LLP. “People now are given smartphones and are expected to respond to emails 24/7, whether they’re paid for it or not. I think the way people are working harder and longer is blurring the line between work life and private life, and it shouldn’t surprise us now that things that happen in our personal lives may have consequences in our workplace.”

Ghomeshi has filed a lawsuit against the CBC, claiming $25-million in damages for breach of confidence, $25-million in damages for defamation, and $5-million in punitive, aggravated and exemplary damages. He also plans to grieve his termination under his collective agreement, seeking reinstatement.

“We can’t naively assume that just because something was done in our private lives, that any employer is going to want to associate his or her business with it,” says Cochrane, author of Strictly Legal II. “The minute what you do in your private life makes it hard to do your job the way your employer wants you to do it, they can get rid of you.”

In his book, Cochrane discusses whether an employee’s activities outside of work can have an impact on their employment.

Using examples including an employee who has an affair with a co-worker’s wife; a school teacher who expresses racist views outside of the classroom; or a teacher who makes a porno movie on her own time after class; Cochrane says a series of tests must be met in order for a company to justify dismissing such an employee.

The employer would need to establish that, Cochrane writes in Strictly Legal II, “(a) the conduct of the employee has harmed the company’s reputation or product, (b) the employee’s behaviour has rendered them unable to perform their duties satisfactorily, or (c) the employee’s behaviour has so affected the workplace that other employees refuse to (or are reluctant to) work with him or her, (d) the employee has been guilty of a serious breach of the Criminal Code and damaged the reputation of the company, and (e) the conduct made it difficult for the company to properly manage that employee’s behaviour.”

In Ghomeshi’s case specifically, Cochrane says his position as a public figure also plays a role.

“I think he has a big problem with his lawsuit because he made himself into a personality and the personality was the core of his relationship with his audience through that employer,” he says. “He has, in a way, undermined his own persona and therefore the thing that the CBC was selling has been undermined.”

In an interview with CTV News, Cochrane says it's likely more evidence is needed before criminal charges can be laid against the former radio host.

"No Crown attorney looking at this evidence would say there's a reasonable prospect of getting a criminal conviction based on what's been said so far," Cochrane says on the broadcast. "So I think what they're trying to do is reach out for more evidence to find out if there's something there that would allow them to say, 'Now we've got enough, let's lay some criminal charges.'"

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