Termination for Defamation: HR Tips to Avoid Cherry Scenario
You don’t keep an employee for long if they don’t have a positive impact on your business, and 38 years of Coach’s Corner would indicate that hockey broadcaster Don Cherry was good for Hockey Night in Canada. He clearly had a positive impact on TV ratings over the years and was an asset for his employer. But sometimes good things end and for Cherry it came in the form of a rant which many viewers took as anti-immigrant.
Cherry was criticizing those who don’t wear a poppy on Remembrance Day and the implication from the now-famous “you people” was that he was targeting newcomers to Canada.
What he said was: “You people […] love our way of life, love our milk and honey. At least you could pay a couple of bucks for poppies or something like that. These guys paid for your way of life that you enjoy in Canada.”
The statement pushed his employer Sportsnet to end the relationship after 38 years of service. Bart Yabsley, President of Sportsnet, described Cherry’s statement as “divisive remarks that do not represent our values or what we stand for.”
Sponsors soon followed up with their own response to Cherry’s comments. Said Todd Allen, Vice-president of Marketing for Labatt Breweries of Canada: “The comments made Saturday on Coach’s Corner were clearly inappropriate and divisive, and in no way reflect Budweiser’s views. As a sponsor of the broadcast, we immediately expressed our concerns and respect the decision which was made by Sportsnet today.”
Indeed, the initial communication was clearly the trigger for the separation and that is perhaps why, during his Nov.12 interview with Global News, Cherry said that he should have said “everybody” and not “you people.” But the damage had already been done.
In this case the employer chose to cease Cherry’s employment immediately, perhaps because, as lawyer Daniel Reid from Harper Grey LLP indicated, “almost any negative statement concerning an individual, corporation or group has the potential to be defamatory” and as per Yabsley’s statement, Sportsnet feels socially responsible not to divide Canadians. Furthermore, employment lawyer Jennifer Heath said “an employer can be held vicariously liable for the defamatory words communicated by [its employees…] in certain circumstances.”
In Ontario law, Defamation “is a statement to a third party about an identifiable individual that is false and damaging to the person’s feelings, pocket book, or reputation.” In that sense Cherry’s statement appears to be false; his allegations cannot be confirmed since there is no hard data on who wears poppies, and the statement appears to be damaging since many people were offended. Moreover, his statement appears to relate to an identifiable group of persons (“you people”). But is it enough to say that Cherry was terminated due to defamation? Group defamations are emerging areas at the Supreme Court of Canada, so as an HR consultant I would recommend conferring with a lawyer who specializes in such matters for deeper analysis.
However, because defamation is common in the workplace, it is important to highlight the need for employers to protect their organization and employees against it.
In the case of employee defamation, is firing the only recourse for an employer? No, but an employer should not tolerate it when an employee makes defamatory statements against another employee or the employer. Various recourses involving defamation depend on how you address applicable sanctions in your defamation policy. Sanctions can include a suspension, fine or termination. A best practice for an employer is to contact an employment and/or defamation lawyer, in addition to following your HR policies.
1. Design a defamation policy It should include cases of defamation at work and on social media, and the topic of defamation vs. freedom of expression. But consult a lawyer who knows employment and defamation law when developing the policy. The policy can be part of your employee handbook, code of conduct, or a single policy on its own.
2. A policy is not implemented if employees are not aware of it. Ensure employees are informed about it and understand it.
3. Educate employees on responsible ways to communicate and the need to respect their obligation to act faithfully both at work and outside it.
It would have been better for Cherry to say: “We all love Canada and our way of life. We have this due to veterans and soldiers who paid the price. Let’s all wear poppies and show our appreciation as proud Canadians.”
How you say things can be as important as what you say. Communication will always be important in relationships with others and we should learn how to communicate effectively no matter the circumstances and the audience.
Statement from Sportsnet (Nov 11, 2019). Sportsnet on Twitter
Reputation Matters: How Canadian courts are balancing protection of reputation and freedom of expression (2016). Daniel Reid, Harper Grey LLP
Don Cherry not apologizing for Coach’s Corner poppy rant (Nov 11, 2019). Gregory Strong,CBC
Don Cherry talks ‘Coach’s Corner’ firing, defends comments but would have ‘used different words’ (Nov 12, 2019). Global News on YouTube
The Truth About Defamation in Workplace Terminations (June 20, 2016). Jennifer Heath, Rubin Thomlinson LLP
What is Defamation in Ontario Law (2010). Gil Zvulony, Zvulony & CO PC