Canadian Employment Law Today

June 2, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Canadian Employment Law Today Canadian Employment Law Today | | 3 Cases and Trends Cases and Trends Canadian HR Reporter, 2021 THE CANADIAN Broadcasting Corporation (CBC) wrongfully dismissed a Manitoba reporter when it fired him for telling others that the corporation had ordered him to delete a tweet about Don Cherry and dug into his personal social media accounts. Ahmar Khan, 25, was a reporter/editor for the CBC in Winnipeg. He was hired in November 2018 as a temporary fill-in for another reporter who was on maternity leave until April 2020. On Nov. 9, 2019, Khan, whose family was from Pakistan, posted a comment on his Twitter account — which included his CBC email address — calling comments by CBC hockey broadcaster Don Cherry "xenophobic" and saying that there was "deep-rooted racism" in hockey and on national TV. The CBC later fired Cherry for his comments. In less than 24 hours, Khan's tweet was "liked" more than 4,000 times, retweeted more than 1,000 times and generated close to 400 comments. The managing director of CBC Manitoba felt that the tweet violated the CBC's journalistic standards and prac - tices, which required reporters to "maintain professional decorum" and avoid expressing personal opinions that could undermine the credibility of its journalism. Employee asked to delete tweet The managing director asked Khan to delete the tweet. Khan did so, but he disagreed that it violated the corporation's journalistic stan - dards and practices as other CBC employees had expressed opinions on Twitter. He said that he felt that the journalistic policies were being applied selectively, but he apologized anyway. He wasn't disciplined for the tweet. However, Khan believed that a discussion about race and the CBC was necessary, so he told a journalist friend that the CBC had ordered him to delete the tweet. The friend posted a story online about the matter. Khan also told a Macleans magazine columnist about it, who then tweeted about it, which Khan asked another friend to retweet. Two weeks later, Khan used a shared CBC laptop to cover the Grey Cup game. Afterwards, he left the laptop on his desk without logging out of his Twitter and WhatsApp accounts. Another reporter took the laptop from Khan's desk, found the messages to Khan's friends and informed the managing director. The managing director asked the other reporter to search the messages and send her screenshots. The other reporter found other messages complaining about the CBC jour - nalism standards and practices — referring to management as "a—holes" — as well as joking messages to friends on WhatsApp that were mostly nonsense but contained a word that could be construed as a slur against homosexuals. Khan acknowledged telling other journal - ists about the order to delete the tweet, saying he did so because he wasn't getting answers from the CBC. He acknowledged that his refer- ence to management was inappropriate, but he said he was frustrated and felt the CBC wasn't supporting him. The CBC terminated Khan's employment on Dec. 3 for contacting external outlets about the order to delete the Don Cherry tweet, making disparaging remarks about CBC management and policies to outside parties and using a homophobic slur on WhatsApp, where his profile identified him as a CBC employee. Reasonable expectation of privacy The arbitrator noted that CBC policy permitted employee personal use of corporate computers, including use of social medial and private conversations with sources. Khan had a reason - able expectation of privacy for his personal accounts — which included messages with friends and family about personal matters — and reasonably believed that a co-worker who took a shared laptop would log off of any of his personal accounts. Instead, his co-worker looked through his private messages and passed some along to management. This was a violation of the collective agreement, which stated that "employees have the right to work in an environment that respects their personal privacy and is free from surveillance," said the arbitrator, who noted that this was a rare feature for a collective agreement and indicated that the CBC recognized the importance of privacy for its employees. The arbitrator also found that an employee privately expressing displeasure with an employer policy was not grounds for disci - pline — otherwise "this country would be facing a severe labour shortage." As for the perceived homophobic slur, the CBC didn't have the context of the word as part of nonsen- sical private messages to Khan's friends, it had nothing to do with his job and it wasn't meant for management's eyes. As for Khan telling outside reporters about the order to delete his tweet, the arbitrator found that it didn't disparage the CBC or its management. It wasn't damaging to the CBC, as it was a public broadcaster that "is constantly in the news over controversies that range from the trivial to the weighty," said the arbitrator, pointing out that CBC employees have spoken out publicly in the past about CBC-related issues. There was no evidence this harmed the CBC's reputation, particularly since more state - ments were made by others related to racism and the CBC after Khan's termination, the arbi- trator said. "The grounds cited by the employer for Mr. Khan's termination amounted to, at most, a minor indiscretion, and are far overshadowed by the breach of his privacy that enabled the employer to discover these activities," said the arbitrator in ordering the CBC to offer to rein - state Khan for the remaining four months of his contract. In addition, the arbitrator found that Khan was entitled to damages for the breach of his privacy, to be determined by the parties. For more information, see: • Canadian Broadcasting Corporation v. Canadian Media Guild, 2021 CanLII 761 (Can. Arb.). Telling others about order to delete tweet wasn't a fireable offence; CBC breached his privacy by snooping in his social media accounts BY JEFFREY R. SMITH Manitoba CBC reporter fired for talking too much was wrongfully dismissed CREDIT: SHAUNL iSTOCK

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