Coach’s absence during World Cup preparation wouldn’t bring irreparable harm if complaint successful: Court
Trying to stick around
One of the remedies a court or arbitrator can award an employee who wins a wrongful dismissal case is reinstatement. As long as things haven’t become too damaged to make the employment relationship unworkable, reinstatement can be the simplest way to rectify the damages from a dismissal.
However, a court case or arbitration can take a long time, and if the employee wins the case, it might not be enough to make up for lost time. Sometimes an injunction will be sought to let the employee back until a final decision is made. One example of such a situation could be the coach of a team preparing for a big tournament. However, the bar is set pretty high for such an injunction to be granted, as the former coach of the Canadian junior women’s field hockey team discovered.
The British Columbia Supreme Court has denied the former coach of the Canadian junior women’s field hockey team an injunction to be reinstated during World Cup preparation while his complaint over his dismissal is tried.
Peter Milkovich was player for the Canadian national men’s field hockey team for several years and was hired in September 2011 to coach the women’s junior national in preparation for the junior world cup finals in 2013. Milkovich was hired by Field Hockey Canada (FHC), which is a private, not-for-profit corporation that serves as the national governing body for field hockey. The FHC, run by a board of directors, has several established policies including a code of conduct, an ethics policy, an employee policy, a discipline policy, an appeals policy and a harassment policy.
Milkovich’s contract was set to expire on Dec. 31, 2013, following the Junior World Cup tournament, which was scheduled to take place that month. The contract also specified a three-month probation period when he was hired, followed by a performance review. Either party was allowed to terminate the contract with a minimum of two weeks’ written notice, and FHC was entitled to terminate if Milkovich “fails to perform the duties specified in the contract in a manner satisfactory to the association, or fails to fulfill any other terms of this contract.”
Coaching style caused problems
Milkovich had an aggressive style of coaching that started causing problems with members on the team, other coaches and officials at field hockey tournaments. In June 2012, FHC received complaints from some of the members of the junior national team. The complaints alleged Milkovich used inappropriate language and verbally abused some of the players. He was also accused of encouraging underage drinking.
FHC retained an HR consultant to review the junior women’s field hockey program. In late June 2012, FHC reviewed the report and prepared a “strongly worded warning letter” to Milkovich about inappropriate behaviour to be sent to him after the Canadian national championships, which were beginning on June 29. FHC also prepared a draft suspension letter, which it intended to send to Milkovich if he showed any in appropriate behaviour during the tournament.
However, a member of FHC’s high performance committee mistakenly sent the suspension letter to Milkovich on the eve of the national championships, resulting in Milkovich missing the tournament. Milkovich didn’t think he was suspended in error and accused FHC of not following its own disciplinary policies and procedures. He was reinstated on July 3, but told he was not to us any inappropriate or aggressive behaviour towards the players when the team went to Europe later that month.
Milkovich claimed that at his reinstatement meeting, FHC acknowledged Milkovich’s concerns about the process that led to his suspension and agreed to abide by the spirit of its code of conduct, which included the principles of honesty, openness, transparency, fairness, accountability and commitment. He said he was told there would be no further decisions regarding his employment during the informal review of the program, but FHC denied it made such promises.
There was one more meeting of July 25. Milkovich requested additional meetings to go over the informal review process but he didn’t receive a response.
Coach given working notice; team does well at tournament
On Aug. 27, 2012, FHC informed Milkovich his employment as coach of the national junior women’s team was being terminated without cause. He was given working notice until Oct. 8. Milkovich didn’t believe his termination was without cause and felt it was related to his behaviour towards players and officials for which he had already been suspended in June. He felt the termination amounted to his being disciplined twice for the same misconduct.
Before his effective date of termination, Milkovich coached the team in the Pan-American Championships in Mexico, where they had their best finish in 15 years. They also qualified for the 2013 Junior World Cup. When his employment ended in October, a new coach took over to prepare for the World Cup, which had been moved up to July 2013. Milkovich claimed he had “significant input” in assisting the new coach.
Milkovich filed a grievance against FHC, claiming the organization hadn’t dealt fairly or justly with him during his employment as a national coach. He argued FHC didn’t follow its own policies or his employment contract and breached its implied duty of good faith.
Milkovich also applied to be reinstated as coach of the national junior women’s field hockey team until the final decision on his grievance, arguing his absence leading up to the World Cup would cause irreparable harm to the team and his career. His dream, he said, was to coach the team in the Junior World Cup, which occurred only once every four years, and denying him this chance could not be compensated for in any other way if he won his case. Also, Milkovich argued, the team was preparing for the tournament under his guidance, which had been interrupted. This could potentially put the team in disarray at an important time.
Milkovich also claimed FHC wouldn’t suffer any harm if he was reinstated, because he worked in Vancouver and most of the FHC board members were in Ottawa and would have minimal interaction.
FHC responded that Milkovich must establish there was a serious question to be decided and he was “clearly in the right” in order to restore his status as national junior team coach.
The court found the issues Milkovich brought forward in his grievance were serious and not “vexatious or frivolous.” Therefore, there was a serious issue to be tried. However, Milkovich was not a unionized employee so FHC was allowed to terminated him without cause as long as it provided adequate notice or pay in lieu of notice, said the court.
Though Milkovich lost the opportunity to fulfill his dream of coaching the national junior women’s team in the world cup, his employment contract did not guarantee he would get that opportunity, said the court. His duties while employed was to prepare for and attend tournaments, but he “necessarily lost the opportunity to perform those duties and responsibilities” when his employment was terminated. This did not constitute irreparable harm.
The court also found there was no irreparable harm to the team, which had another coach to prepare it for the World Cup. Since FHC had lost confidence in Milkovich’s ability to coach the team and enmity had built up in the circumstances around his termination followed by his grievance, the court found “reinstatement would impose an intenable relationship.” In addition, another switch in coaches in the months leading up to the World Cup would be even more disruptive to the team, said the court.
“FHC decided to terminate Mr. Milkovich’s employment which, as any employer, it is entitled to do,” said the court. “FHC considers that its dream of the (world junior national team) attending and succeeding at the World Cup can be attained without Mr. Milkovich’s participation.”
The court dismissed Milkovich’s claim for an injunction to reinstate him as coach of the team.
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