{"id":245,"date":"2019-12-21T13:52:39","date_gmt":"2019-12-21T18:52:39","guid":{"rendered":"https:\/\/www.debousquet.com\/blog\/?p=245"},"modified":"2022-03-04T13:53:07","modified_gmt":"2022-03-04T18:53:07","slug":"don-cherry-fired-from-sportsnet-can-an-employee-be-fired-for-making-controversial-remarks","status":"publish","type":"post","link":"https:\/\/www.debousquet.com\/blog\/2019\/12\/21\/don-cherry-fired-from-sportsnet-can-an-employee-be-fired-for-making-controversial-remarks\/","title":{"rendered":"Don Cherry Fired from Sportsnet – Can an Employee be Fired for Making Controversial Remarks?"},"content":{"rendered":"

On November 9, 2019, legendary Hockey analyst Don Cherry made remarks during\u00a0an on-air <\/span>Coach\u2019s Corner<\/span><\/i> segment\u00a0insinuating that immigrants benefit from the sacrifices made by Canada\u2019s veterans but rarely wear\u00a0<\/span>poppies<\/span><\/a> to acknowledge their sacrifices. Mr. Cherry\u2019s off-the-cuff political commentary proved to be the straw that broke the proverbial camel\u2019s back. On <\/span>November 11<\/span><\/a>, just two days later, Sportsnet president Bart Yabsley announced that Cherry had been fired. \u00a0<\/span><\/p>\n

Cherry\u2019s fate begs the question: Did Sportsnet have a legal leg to stand on? Can an employer fire an employee for making controversial remarks?\u00a0<\/span><\/p>\n

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.<\/span><\/p>\n

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.<\/span><\/p>\n

However, courts sometimes find that employment relationships that purport to be fixed-term are actually indefinite. Although unlikely in Don Cherry\u2019s 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.\u00a0<\/span><\/p>\n

Therefore, an employee dismissed<\/a> \u2018without cause\u2019 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.\u00a0<\/span><\/p>\n

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.\u00a0<\/span><\/p>\n

This distinction makes \u2018with cause\u2019 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\u00a0<\/span>Regina v. Arthurs<\/span><\/i>:<\/span><\/p>\n

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.<\/span><\/p>\n

Historically, courts have developed certain grounds for \u2018just cause\u2019 dismissal, in keeping with the <\/span>Arthurs <\/span><\/i>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 \u201ccause\u201d to dismiss an employee. The main inquiry to be made is <\/span>whether the employee has engaged in misconduct that gave rise to a breakdown in the employment relationship<\/span>. Further, employers have an obligation to consider an employee\u2019s entire employment history and any mitigating factors in assessing<\/span> whether cause for dismissal exists.<\/span><\/p>\n

Other legally relevant factors courts have used when determining if the employer had cause, include:\u00a0<\/span><\/p>\n