Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. Photo: Contributed

Kootnekoff: Wrongful dismissal in Coach’s Corner

Kelowna lawyer weighs in on the Don Cherry saga

There was a rumour previously that he could be on the way out.

Don Cherry was notoriously loud, outspoken and colourful, both in what he said and in what he wore. He was a permanent fixture in the Canadian hockey scene.

That came to an end this past Monday, Remembrance Day 2019.

After making a comment about immigrants not wearing poppies, Don Cherry is suddenly out of a job.

He had co-hosted CBC’s Saturday night Coach’s Corner since 1982.

The exact comment was “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….” His co-host Ron MacLean nodded.

The Canadian Broadcast Standards Council, an industry funded organization established by Canada’s private broadcasters, stated that its systems were overloaded with complaints following Mr. Cherry’s comments.

Sportsnet apologized for the comment, stating that his comments were discriminatory and offensive, and that they “do not represent our values and what we stand for as a network.”

Ron MacLean also apologized for not challenging Mr. Cherry’s “hurtful and prejudiced” remarks.

The NHL released a statement that “the comments made last night were offensive and contrary to the values we believe in.”

Then, Sportsnet announced that it was “the right time” for him to ”immediately step down.”

Mr. Cherry said “I would have liked to continue doing Coach’s Corner. The problem is if I have to watch everything I say, it isn’t Coach’s Corner. To keep my job, I cannot be turned into a tamed robot.”

Does Mr. Cherry have a case for wrongful dismissal?

Those in senior positions and public figures can be held to a higher standard, because they are often considered to represent the employer and its values.

The employer has the onus of establishing just cause.

In Mr. Cherry’s case, he was well known for his politically incorrect views. His flamboyant style and strong views presumably helped ratings. Mr. Cherry had made offensive remarks numerous times in the past and yet remained employed.

In circumstances such as this, unless there was some very strong performance management ongoing behind the scenes, the employer will likely be seen to have condoned his behaviour.

Just cause for dismissal can not generally be based on conduct that has been condoned by the employer.

Another potential problem for Sportsnet is Mr. Cherry’s age. He is now in his 80s. If age was a factor in his dismissal, he could also make a human rights complaint.

If the employer is not able to establish just cause for his dismissal, and assuming he does not have a valid employment agreement stating otherwise, Mr. Cherry may well be entitled to a substantial severance payment.

The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Specialist advice from a qualified legal professional should be sought about your specific circumstances.

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