A B.C. legal assistant who hosted an after-hours podcast in which she discussed a co-worker’s sexual orientation and made insensitive remarks was fired by her employer.
The company cited her lack of remorse and failure to understand the depth of her unprofessionalism in justifying the decision. And her union, after exhausting the grievance procedure, refused to take her case to arbitration — citing the “very large stumbling block” created by this refusal to take responsibility for her actions.
The worker then filed a complaint with the British Columbia Labour Relations board, alleging her union breached its duty of fair representation.
Background
CS worked for the Insurance Corporation of British Columbia (ICBC) and was represented by Local 378 of the Canadian Office and Professional Employees Union.
She was a legal assistant in the employer’s litigation department for six years, and said she had a clean record prior to her termination.
The ‘Traitor’ podcast
CS hosted a publicly available podcast with a co-worker (the co-host). On Dec. 1, 2021, an episode of the podcast called “Dear Traitor, You Broke My Heart” aired.
The summary of the episode posted read as follows: On this episode, [CS] opens up to [the Co-Host] about her recent heartbreak. Is one lie enough to question all truths? She goes into intimate detail with [the Co-Host] discussing the story of Traitor by unravelling the mystery of his double life and learning to accept the loss of his friendship. How well do you need to get to know someone to realize you’re actually strangers? [The Co-Host] analyzes the facts while [CS] learns to accept the unknown.
CS used aliases to anonymize the people discussed in the podcast. The “traitor” she referred to was another ICBC employee who had transferred to another city. CS had a romantic interest in the traitor that she previously expressed to him.
CS said her and the traitor were friends, and that she was primarily upset about the loss of the friendship. CS said the traitor actually lived at her house for a period of time during a renovation at his home, and CS felt betrayed when she learned the traitor was in a same-sex relationship.
That topic was discussed during the podcast.
Meeting with employer
On Dec. 8, CS was summoned to a meeting with ICBC about the podcast. A union steward was present at this meeting.
CS said she co-operated during the meeting, showing screenshots of her social media accounts, providing information about podcast downloads and confirming who the episode was about. She said she believed that the traitor was the one who complained to the employer about the podcast.
In the meeting, the employer also raised concern about content from other episodes it considered to be inappropriate.
CS was asked to remove the Dear Traitor episode immediately. CS complied, but told the employer it might take some time to delete it from the podcast platform where it was available. ICBC put her on a paid suspension pending further investigation.
Termination
On Dec. 15, 2021, ICBC terminated her employment. The termination letter said the employer determined CS had:
- engaged in bullying and harassment and sexual harassment
- breached ICBC’s Code of Ethics and Respectful Workplace policy
- made inappropriate comments and insensitive remarks about employees on the podcast
- openly discussed another employee’s sexual orientation and sexual history
“I am shocked by your actions, lack of genuine remorse and failure to recognize the depth of your unprofessionalism,” it stated. “Not only was it completely inappropriate to publicly discuss an employee’s private information, but your actions had the potential to cause serious reputational damage.”
The grievance and decision to abandon arbitration
The union grieved the termination on Dec. 21, 2021. It went through the grievance steps but was unable to resolve the issue with ICBC.
On July 27, 2022, the union recommended that the case not be taken to arbitration. It said CS had “showed no remorse and attempted to justify her actions.”
It pointed out that CS believed her actions were acceptable because the podcast was a personal platform and she understood discussions of such matters are suitable for podcasts. The recommendation noted that the podcast was publicly available and, while she used aliases for others, she used her own real name as host.
In short, the recommendation stated that it was difficult to conclude that termination was excessive and an arbitrator would likely decide that the employer-employee relationship had been irreparably damaged.
On Sept. 29, 2022, the union wrote to CS to notify her of the decision not to pursue arbitration. It rejected an appeal from CS and withdrew its grievance on Oct. 24, 2022.
The board’s decision
CS applied to the British Columbia Labour Relations Board, alleging the union breached its duty of fair representation in the handling of the grievance.
Most of her claim related to the inadequacy of the union’s investigation. But, in this case, her employment was terminated because of statements she made on her podcast. There was no dispute that she made the statements, the board noted.
The union told CS her refusal to take responsibility for her actions during the meeting with the employer would be a “very large stumbling block” if it proceeded to arbitration.
“I find the Union took reasonable measures to inform itself of the relevant information concerning the Grievance and made its decision not to proceed with the Grievance for workplace-related reasons,” the board ruled.
For more information, see Sama v Insurance Corporation of British Columbia, 2023 BCLRB 23 (CanLII).
