Ditching Don Cherry

“You people that come here… whatever it is, you love our way of life, you love our milk and honey, at least you could pay a couple of bucks for a poppy.” (Don Cherry, Nov. 9, 2019)

So, what would you do if that was a public quote from one of your employees? Would it matter if he said it while acting as a representative of your company (meaning on a national television broadcast) or on his own personal podcast?

There has been a lot of debate about whether Sportsnet was right to get rid of Cherry, and from a legal perspective, whether it had just cause to fire him. I have no inside information about this situation, and cannot comment on it directly as a result, since there is a lot that we don’t know.

But some of the information that I would ask for, if I were advising a company in those circumstances, includes

● What does the relevant policy or code of conduct say?

● More importantly, what have they discussed with the individual before?

○ Given that he has made culturally insensitive comments in the past, has he been clearly advised of expectations and warned of consequences (otherwise, can he argue condonation?)?

● How did he respond when confronted?

While I cannot opine on whether Sportsnet had just cause to fire Cherry (and I suspect that he received a severance payment in any event), the scenario is a great springboard for discussion into how employers should handle similar situations.

The bottom line is that when it comes to employment law and dismissal in particular, little is “black and white.” As I discuss in my text, You’re Fired! Just Cause for Dismissal in Canada, assessing whether or not just cause for dismissal exists is a particularly complex exercise which requires consideration of all relevant factors. Furthermore, the risks of getting it wrong can be substantial.

Cherry’s comments were made during his Coach’s Corner segment of Hockey Night in Canada. However, it is far more common for employers to have to deal with situations where an employee makes inappropriate comments while off-duty, often on social media or some online platform.

The common thread is that the comments are seen as inappropriate and offensive, and risk damaging the reputation of the organization in question. Can employees be disciplined or dismissed for such actions? Don't we have freedom of speech in Canada? As I wrote in a post way back in 2014, “Our charter guarantees freedom of speech, though even that is limited in certain circumstances. This guarantee means that, with certain exceptions, an individual will not be subject to criminal prosecution or conviction as a result of what they say. Of course, it has been limited by hate laws and other legislation. However, even accepting the general principle that what you say cannot be used against you, this does not apply to every context. Rather, it protects individuals from criminal prosecution. It does not mean you cannot lose your job, or be suspended from school, or suffer any adverse consequences.”

While what people do on their own time is generally none of their employer’s business, the law has always provided that off-duty conduct can justify discipline in appropriate circumstances. Generally speaking, those circumstances exist when the off-duty conduct has an impact on the employer or the employment relationship, such as damaging their reputation.

So, what do you do when you become aware of such off-duty conduct on the part of an employee? The first thing that we tell our clients in such situations is never to react in haste. It may be tempting to fire the individual immediately. But that is rarely the best choice, and in most cases, it will expose your organization to potential liability. Once you take that deep breath, what are the things to bear in mind as you deal with the situation?

Investigate: Our courts and arbitrators expect that employees will be given due process, particularly before they are summarily dismissed. First, the employer must confirm their suspicions and make sure that there was misconduct. Second, they should ensure they uncover all extenuating circumstances. This should include reviewing relevant documents and interviewing relevant individuals

Interview: Part of the investigation must include interviewing the “accused” and giving them an opportunity to respond to the allegations. While many employers express reluctance, the reality is that courts and arbitrators expect it and, furthermore, the employer will benefit:

● The employee may provide information which exonerates them, which would be quite embarrassing and expensive to learn months after summarily dismissing them.

● The employee may respond dishonestly, which will provide further support for a position that they could no longer be trusted and that the employment relationship had been irreparably damaged.

● The employee may disclose mitigating factors, such as addiction, which might otherwise come back to haunt the employer -- better to know about them and then make an informed decision.

Decide: An investigation must result in a determination -- either the allegations were made out or they were not. It is a cop-out to say, “I cannot decide”, even if it is an issue of credibility. If someone is not capable of conducting an investigation and reaching a decision, they should not be tasked with the investigation. Remember that the standard of proof is not “beyond a reasonable doubt” as it would be in a criminal trial; it is a balance of probabilities, which means, more simply, deciding whether the allegations are more likely than not to be true.

Consider next steps and appropriate discipline: Even if the employee is found to have engaged in misconduct, that does not necessarily mean that summary dismissal is warranted. Courts will assess all relevant factors when determining the appropriate level of discipline. That includes

● length of service

● disciplinary history

● past tolerance/condonation of similar conduct

● mitigating factors like disability or addiction

● employee response when confronted.

In the Don Cherry scenario, there were many past instances where he made insensitive comments, so it may have been possible for him to assert that Sportsnet had condoned such behaviour and was precluded from firing him for it now. Conversely, they may have given him a final warning previously. Furthermore, his response when confronted would be a critical factor: Did he give them reason to believe that such conduct would be repeated?

At the end of the day, there are rarely easy answers. However, employers that fire first and ask questions later often end up paying for their haste. And the penalty is far more than the two minutes in the penalty box that resulted from Cherry’s infamous “too many men on the ice” transgression against the Montreal Canadiens way back in 1979.