On November 9, 2019, legendary Hockey analyst Don Cherry made remarks during an on-air Coach’s Corner segment insinuating that immigrants benefit from the sacrifices made by Canada’s veterans but rarely wear poppies to acknowledge their sacrifices. Mr. Cherry’s off the cuff political commentary proved to be the straw that broke the proverbial camel’s back. On November 11, just two days later, Sportsnet president Bart Yabsley announced that Cherry had been fired.
Cherry’s fate begs the question: Did Sportsnet have a legal leg to stand on? Can an employer fire an employee for making controversial remarks?
Whether Mr. Cherry was terminated with or without cause is unknown. This distinction has important financial consequences for both the employer and the employee. Don Cherry had been employed by Sportsnet on a series of fixed-term contracts. The most recent two, including the one that was recently terminated, were each for one year. His contracts were always renegotiated when they ended, and he was not guaranteed continued employment once they ended.
It is likely that his contract would be considered a true fixed-term contract. When an employee on a fixed-term contract is terminated without cause (i.e., for a reason other than a material breach of the contract), they are generally entitled to the entire amount left owing on their contract.
However, courts sometimes find that employment relationships that purport to be fixed-term are actually indefinite. Although unlikely in Don Cherry’s case, he would be entitled to even more if his contract were found to be for an indefinite term. At common law, permanent employees are presumptively owed reasonable notice or pay in lieu thereof and are entitled to all non-discretionary payments that make up their total compensation package.
Therefore, an employee dismissed ‘without cause’ is owed the value of benefits, unpaid bonuses, sales commissions, retirement plan contributions and stock options that he or she would have received during the notice period but for their termination.
With cause terminations exempt the employer from providing the employee with their entitlements under a fixed-term contract or, in the case of indefinite-term employees, with their common law entitlement to notice or pay in lieu thereof.
This distinction makes ‘with cause’ dismissal an alluring option for employers, who can easily fall into the temptation of summarily dismissing an employee at the first hint of misconduct. However, such a course of action is a heavy-handed solution that employers only should use judiciously. If performed unjustly or without requisite degree of justification, the employer can expose itself to significant liability, which can include damages for mental distress inflicted on the employee in addition to damages for breach of contract or common law notice. While there are no hard and fast rules for determining when an employer can lawfully terminate an employee for cause, a frequently cited legal test was articulated in Regina v. Arthurs:
If an employee has been guilty of serious misconduct, habitual neglect of duty, incompetence, or conduct incompatible with his duties, or prejudicial to the employer’s business, or if he has been guilty of wilful disobedience to the employer’s orders in a matter of substance, the law recognizes the employer’s right summarily to dismiss the delinquent employee.
Historically, courts have developed certain grounds for ‘just cause’ dismissal, in keeping with the Arthurs test. These grounds include dishonesty, incompetence, insubordination, intoxication, sexual harassment, criminal conduct, breach of fiduciary duty, and breach of employee duties. Accordingly, only the most serious forms of misconduct will be considered “cause” to dismiss an employee. The main inquiry to be made is whether the employee has engaged in misconduct that gave rise to a breakdown in the employment relationship. Further, employers have an obligation to consider an employee’s entire employment history and any mitigating factors in assessing whether cause for dismissal exists.
Other legally relevant factors courts have used when determining if the employer had cause, include:
- whether the employee had received previous warnings;
- whether the employee knew his or her job was in jeopardy;
- whether the employee’s behaviour had been ignored or condoned by the employer;
- whether the employer had condoned similar behaviour from other employees;
- How long the employee had been working for the employer.
Given how events unfolded and the arbitrary nature of his termination, it is safe to say that Mr. Cherry was not given notice of his termination. That means he was either dismissed with cause, or without cause with minimal notice, which would be accompanied by a substantive severance package. Even if he was dismissed for cause, given his high public profile, Sportsnet likely severed the relationship by providing Cherry with some sort of severance pay. After all, in some circumstances, it is best to deal the knockout blow using a velvet glove. Cherry’s special status as a prominent public figure means that this kind of treatment is the exception, not the rule.
If he was, in fact, fired for cause, one would have to analyze and consider several of the factors previously mentioned. First, the history of Mr. Cherry’s relationship with Sportsnet would be relevant since Mr. Cherry has a history of making politically incorrect statements. How Sportsnet reacted to previous indiscretions is highly relevant to the analysis. If Sportsnet failed to reprimand Cherry, this may signify a condonation of his behavior and would make dismissal for cause harder to justify. Moreover, whether Mr. Cherry received a series of escalating reprimands and warnings that made it clear that further controversial remarks could be cause for dismissal could support Sportsnet’s decision to dismiss him for cause. Also relevant would be Sportsnet’s internal policies and procedures. Repeated violations of major policies, or single violations of important policies, could be grounds for just cause dismissal, provided that the policy was reasonable. The fact that the remarks were made ‘on the job’ also bolsters a potential ‘just cause’ dismissal, since Mr. Cherry is in a representative role with the organization. His on-air remarks directly implicate his employer’s reputation and public standing.