Don Cherry’s firing: an employment law perspective
By Paul Russell, AdvocateDaily.com Contributor
Sportsnet might be unable to prove it had just cause to fire Don Cherry from Hockey Night in Canada (HNIC) if that decision were challenged in litigation, says Toronto employment lawyer Sean O’Donnell.
“If we are, in fact, talking about firing for just cause, the general rule is that a single incident of employee misconduct does not warrant summary dismissal,” says O’Donnell, principal of SJO Legal Professional Corporation.
“That standard is pretty hard to get around unless there are exceptional circumstances,” he tells AdvocateDaily.com.
Cherry was released by Sportsnet on Nov. 11 after making on-air comments that “arguably” suggested immigrants to Canada benefit from the sacrifices of veterans but do not wear Remembrance Day poppies to show their gratitude, O’Donnell says.
As Cherry stated on Coach’s Corner during the first intermission of HNIC, “You people … that come here … you love our way of life, you love our milk and honey, at least you can pay a couple bucks for a poppy or something like that … These guys paid for your way of life that you enjoy in Canada, these guys paid the biggest price.”
O’Donnell says the backlash from the public was immediate, as many Canadians felt he had unfairly portrayed new Canadians in a negative light.
“Today’s social and political landscape has been shaped by the #MeToo and Black Lives Matter movements, while attitudes and societal norms are not what they were 10 years ago, or certainly not 35 years ago when Coach’s Corner began,” he says.
“Our justice system does not ignore societal values, particularly the Supreme Court of Canada, whose decisions reflect modern Canadian values.”
Since Canada is a multicultural and tolerant country, O’Donnell says Sportsnet executives probably felt they had to do something, though he questions if they had the legal right to summarily dismiss Cherry.
“In employment law, we refer to cause termination as being somewhat like capital punishment,” he says. “The Supreme Court has said cause dismissals are a drastic step to take, and there is a very high bar that has to be met to justify it.”
O’Donnell stresses the importance of a 2001 decision that discusses the contextual approach that needs to be taken in these cases.
“Employers have to think about the context, and whether the discipline being meted out to the employee is proportional,” he says.
In terms of context, O’Donnell says the first thing to consider is the length of time the person has worked with the firm. Cherry has been doing Coach’s Corner for approximately 35 years but has only worked for Sportsnet since the beginning of the 2014/15 season, when Rogers Media purchased broadcast rights for HNIC.
“It would be difficult for Sportsnet executives to say they were unaware of the comments Cherry made earlier on CBC, about how only ‘European and French guys’ wore visors on their helmets or that female reporters should be banned from the dressing room after games,” he says.
O’Donnell says another part of the contextual approach is to see if the person was given warnings about their behaviour before being let go.
“If Cherry was not disciplined before, it would be a hard sell to say that he should be let go now for cause,” he says.
Since Sportsnet should have known about his tendency to make outrageous comments, hiring him for the same position could even be seen as implicit acceptance of that behaviour, O’Donnell says.
“Sportsnet knew — or ought to have known — what it was getting,” he says.
In terms of proportionality, O’Donnell wonders if Sportsnet considered other options, such as suspending Cherry or giving him a written warning.
“Employers have to ask themselves whether someone’s misconduct is of such a magnitude as to overshadow contributions he has made for them,” he says. “There has to be proportional discipline.”
O’Donnell notes that there have been some positive elements come out of this employment dispute, including broad discussions about the value of Remembrance Day, what it means to be a Canadian, and the limits of free speech.
“We all have a right to freedom of expression, but that is tempered somewhat by the prohibition on hate speech or words that incite violence against certain groups or minorities,” he says.