That Don Cherry is telling anyone what to wear is jaw-dropping.
More appalling though, in his rant on national television, was his targeting of immigrants, whom he scolded for their dearth of poppies on their lapels.
“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,” Cherry told the audience of Sportsnet’s Hockey Night in Canada on Saturday.
This went immediately viral, with viewers calling for his immediate termination. Sportsnet complied on Monday, issuing a statement that it had “been decided that it is the right time for Don Cherry to step down.”
Should Cherry’s comments have resulted in his firing and is it legal cause for termination, without notice or wrongful dismissal damages?
Generally, the law recognizes an employer’s right to terminate an employee, even a unionized one, for cause. Large broadcasting companies such as Sportsnet and its owner, Rogers, have codes of conduct prohibiting brand-damaging conduct and many have anti-discrimination policies binding their employees. (My firm represents Rogers Communications.)
Apart from Cherry’s legal duty to abide by the Human Rights Code, Sportsnet has a responsibility to ensure its employees are not targeting immigrants, particularly in the public forum. Employers can be vicariously liable for their employees — particularly senior employees’ — conduct.
There is also the justifiable concern that, if an employee is making such comments publicly, can he or she be trusted to have a different perception toward his co-workers who may be immigrants or visible minorities? What impact would Cherry’s comments have had, if he had not been fired, on his visible minority and immigrant co-workers and their willingness to work with him?
If Cherry took legal action against Sportsnet for wrongful dismissal, a court would likely adjudge that what the hockey pundit said was sufficiently egregious as to be antithetical to Sportsnet’s brand. Thus, the company was justified in terminating him for cause, particularly in light of Rogers’ Code of Conduct.
Cherry is 85 years old, was employed on Hockey Night in Canada for about four decades and built a brand based on politically incorrect, provocative commentary that generated excellent ratings. But it is 2019 and standards and the corresponding public policy — and, with it, what the courts find acceptable — have changed. As well, the law has evolved to prohibit brand-damaging comments, especially when they violate the employer’s Code of Conduct.
On the tail of a Raptors championship that brought Canadians of all backgrounds, colours and beliefs together and at a time when a Sikh man in a turban leads a national political party in Canada, Cherry’s conduct made his continued employment untenable.
McDonald’s won praise last week for firing CEO Steve Easterbrook after he violated the company’s non-fraternizing policy. Rogers cannot adhere to a lesser standard. In the wake of #MeToo, companies have revisited and tightened their sexual harassment policies. Anti-discrimination policies and the protection of human rights are just as important.
Hockey Night in Canada will start looking a little different. Given some of those eye-wateringly crazy blazers, perhaps that’s not so bad.
• Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. The most recent of his six books is Law of Dismissal in Canada.
