On November 11, 2019, Sportsnet fired Don Cherry from Hockey Night in Canada for comments he made on his last appearance on the Coach’s Corner. In that November 9th segment, Cherry discussed remembrance day, and observed that some people did not wear poppies in remembrance of the people who fought for Canada’s freedoms. Cherry said,
"You people … 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."
Since those comments were made, many people have labelled them as bigoted or discriminatory. Many people have interpreted “you people” as referring to Canadian immigrants.
Sportsnet tweeted an apology saying that “Don’s discriminatory comments are offensive.” Cherry’s on-air partner Ron MacLean also tweeted an apology, calling Cherry’s comments “hurtful and prejudiced.”
So was Cherry’s termination justified?
If it was without cause, then yes. If it was for just cause, then no (but very close).
Cherry’s termination without cause was justified
Most employees can be terminated for any reason, or no reason at all, as long as they are provided with enough notice of termination, or pay in lieu of notice (aka severance). So for Cherry, it did not matter under the law whether his comments were discriminatory because Sportsnet would have the discretion to terminate his employment and give him a severance package.
Cherry’s termination with cause not justified.
The only way an employer can dismiss an employee without providing severance is terminating employment for cause, or just cause. This is an extraordinary decision and an employer must have strong grounds to show that employment has to be ended right away. Simple misconduct is not enough to justify terminations for just cause.
To determine whether an employer has just cause to fire someone, courts will look at the entire context of the employment relationship. This includes what the misconduct actually was, all the surrounding circumstances of the employment relationship, and whether a termination for cause is a proportionate response to the misconduct and the surrounding circumstances.
The misconduct
Discriminatory comments are certainly classified as misconduct that deserves discipline.
Surrounding Circumstances
The context surrounding the misconduct and the employment relationship is critical to determine whether a dismissal was for cause. The fact that he had been working for 33 years is a big factor in Cherry’s favour. If Cherry had been given discipline in the past for similar behaviour, or workplace training about discrimination, this would work against his favour. Further, it appears that Cherry was given the chance to apologize for his comments. If Cherry was willing to apologize and recognize that his comments may have hurt viewers, this would help his cause.
Another surrounding circumstance is condonation. It will be very difficult to allow an employer to rely on misconduct for termination if it has let similar misconduct slide in the past. Cherry is known for speaking his mind, including comments that could be considered discriminatory. If Sportsnet/CBC never told him that these comments were unacceptable, they would not have just cause.
From the employer’s perspective, the fact that Cherry occupied a very visible position with a large audience is an important factor to consider. An employee who unreasonably jeopardizes an employer’s business, like its reputation, will deserve sanction. An employer is not expected to tolerate discrimination in its workplace, as that could lead to liability from its customers and its own employees.
Was Termination a Proportionate Response?
Given that we do not know what went on behind the scenes during Cherry’s tenure, it is difficult to say whether an immediate dismissal was a proportionate response to Cherry’s comments. In any event, a termination for cause without severance pay is probably not a proportionate response to Cherry’s misconduct. Terminations for cause is often called the “capital punishment” of employment law, requiring significant misconduct. Further, there seems to be some condonation by Sportsnet.
Employee Education:
Employers can terminate an employee for any reason or no reason at all as long as an employer provides sufficient notice of termination or payment in lieu of notice. Even if you are a perfect employee, you can still be let go.
Employer Education:
A decision to terminate an employee for cause must not be made lightly. To ensure that an organization can rely on a just cause termination, it should be able to demonstrate that it has taken the necessary steps to justify such a decision. This could include applying progressive discipline , providing appropriate employee training, and enforcing company policies.
Jason Wong is a Toronto Employment Lawyer practicing exclusively employment, labour, and human rights law. If you are an employee or employer who has questions about terminations for cause or just cause, please contact Jason at jason@wongemploymentlaw.com or 647-242-5961.