Arbitrator sides with former CBC employee fired after supervisor read his private messages

The information was gathered when a colleague of Khan’s sifted through months of his private messages after he accidentally stayed logged on a company laptop.

A former CBC employee has won a grievance against the national broadcaster after he was fired based on information taken from his private messaging accounts.

According to a document written by arbitrator Lorne Slotnick, journalist Ahmar Khan was fired for leaking insider CBC info to Canadaland and Maclean’s, as well as disparaging management and using a homophobic slur.

However, the arbitrator ruled in Khan’s favour because the information was gathered when a colleague of Khan’s sifted through months of his private messages after he accidentally stayed logged on a company laptop.

Khan had been hired by the CBC in November, 2018, and based in Winnipeg, documents say. A year into his contract, he tweeted in response to Don Cherry’s racist Remembrance Day rant about poppies. Khan called Cherry’s comments “xenophobic” and called for his show to be cancelled. The tweet received thousands of impressions.

“I was shocked that somebody could be so xenophobic and racist on national TV while promoting a game that I love and that brings people together,” Khan later testified. “I can’t take the brown skin off me. It’s what I am first before I’m a journalist.”

Soon after, Melanie Verhaeghe, the managing editor of CBC Manitoba, asked Khan to remove the tweet, saying it went against CBC’s journalistic practices that state reporters cannot express opinions about topics that they could cover. According to the document, she sought the advice of Paul Hambleton, who is in charge of CBC’s journalistic standards policies.

“[If Mr. Khan] wants to be an activist he should step down,” Hambleton replied. “Everyone hears what they want to hear from don cherry.”

Khan initially fought the request — arguing that white journalists share their opinions on topics all the time with no reprisal — but ultimately deleted the tweet.

But soon after, Khan notified a contact at Canadaland about the incident, who then published a story titled “CBC Had Employee Delete Tweet Critical of Don Cherry”. His condition to sharing the information was that he not be credited as its source in the story. He also notified a Maclean’s reporter, who tweeted about the incident.

“Mr. Khan testified that even though he was conflicted about telling Canadaland about the issue, he felt a discussion was necessary about race and the CBC and about how the CBC’s journalism policies were silencing employees of colour,” the document reads. “He said he believed the Canadaland piece sparked discussion within the CBC.”

At the end of November, Khan used a CBC shared work laptop, which requires a sign-out by the employee, and left it on his desk, still signed into his personal Twitter and WhatsApp accounts.

A few days later, a fellow CBC reporter, Austin Grabish, took the laptop and notified their manager that he had found “unethical” materials on the laptop, including proof that Khan had leaked info to Canadaland, a private chat with friends in which he disparaged his manager, and the use of a homophobic slur. He sent multiple screengrabs to Verhaeghe.

According to the documents, Grabish told CBC management that the relevant information was open and visible on the laptop when he opened it. However, some of the screengrabs that Grabish took were dated more than 10 months ago, had different tabs open, and were clearly found by using the search function.

“Mr. Khan testified that the messages found by Mr. Grabish and given to Ms. Verhaeghe were meant to be private, and that he was shocked at the invasion of his privacy.”

CBC management stated that Khan had no expectation of privacy when using a work computer. Khan was fired soon after, based on information from the screengrabs.

In the arbitration, Slotnick ruled that Khan’s privacy had indeed been violated and uncovering a possible Canadaland leaker was not a justifiable cause to rummage through his private information. The violation, he said, “tainted the entire process that led to the termination of his employment.”

“In my view … Mr. Khan had a reasonable expectation of privacy for his messages, and reasonably believed that if a co-worker who took the shared laptop found that Mr. Khan had not logged off his personal Twitter and WhatsApp accounts, that co-worker would log off the accounts rather than comb through the messages,” he said. “He also would not expect messages to be forwarded to management without any discussion with him beforehand.”

Employment and labour lawyer Howard Levitt told the National Post that leaking information about your employer to a competitor is cause for discharge, no matter what industry you’re in. And since this was only an arbitration and not a court decision, while it might be influential in other arbitrations, the decision doesn’t bind other cases to do the same, he said.

“The decision misses the real issue, which is that you can’t give embarrassing information to the media … That is a fundamental breach of confidentiality,” Levitt said.

Nevertheless, Slotnick ruled that the CBC was obligated to offer Khan his old job back for a minimum of four months — the amount of time left in his contract at the time — or compensate him for four months’ worth of work.

“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 those activities,” he said.

“Consequently, my conclusion is that the CBC acted improperly by dismissing him for cause.”