Canadian Employment Law Today

CELT May 1 2013:celt 467.qxd 13-04-29 10:43 AM Page 5 CANADIAN EMPLOYMENT LAW TODAY CASE IN POINT: INJUNCTIONS Absence would disrupt team and harm career: Fired coach ...continued from page 4 it made such promises. There was one more meeting of July 25. Milkovich requested additional meetings to go over the informal review process but he didn't receive a response. Coach given working notice; team does well at tournament On Aug. 27, 2012, FHC informed Milkovich his employment as coach of the national junior women's team was being terminated without cause. He was given working notice until Oct. 8. Milkovich didn't believe his termination was without cause and felt it was related to his behaviour towards players and officials for which he had already been suspended in June. He felt the termination amounted to his being disciplined twice for the same misconduct. Before his effective date of termination, Milkovich coached the team in the Pan-American Championships in Mexico, where they had their best finish in 15 years. They also qualified for the 2013 Junior World Cup. When his employment ended in October, a new coach took over to prepare for the World Cup, which had been moved up to July 2013. Milkovich claimed he had "significant input" in assisting the new coach. Milkovich filed a grievance against FHC, claiming the organization hadn't dealt fairly or justly with him during his employment as a national coach. He argued FHC didn't follow its own policies or his employment contract and breached its implied duty of good faith. Milkovich also applied to be reinstated as coach of the national junior women's field hockey team until the final decision on his grievance, arguing his absence leading up to the World Cup would cause irreparable harm to the team and his career. His dream, he said, was to coach the team in the Junior World Cup, which occurred only once every four years, and denying him this chance could not be compensated for in any other way if he won his case. Also, Milkovich argued, the team was preparing for the tournament under his guidance, which had been interrupted. This could potentially put the team in disarray at an important time. Coach's dream was to coach in the World Cup, which occurred only once every four years. Also, the team was preparing for the tournament under his guidance. Milkovich also claimed FHC wouldn't suffer any harm if he was reinstated, because he worked in Vancouver and most of the FHC board members were in Ottawa and would have minimal interaction. FHC responded that Milkovich must Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. Recent topics include length of time before reinstatement, waiving notice of resignation, job protected leave, what constitutes a workplace, reasonable notice, monitoring employees, disciplining honest mistakes and accommodating parental duties. You can view the blog on www.employmentlawtoday.com. establish there was a serious question to be decided and he was "clearly in the right" in order to restore his status as national junior team coach. The court found the issues Milkovich brought forward in his grievance were serious and not "vexatious or frivolous." Therefore, there was a serious issue to be tried. However, Milkovich was not a unionized employee so FHC was allowed to terminated him without cause as long as it provided adequate notice or pay in lieu of notice, said the court. Though Milkovich lost the opportunity to fulfill his dream of coaching the national junior women's team in the world cup, his employment contract did not guarantee he would get that opportunity, said the court. His duties while employed was to prepare for and attend tournaments, but he "necessarily lost the opportunity to perform those duties and responsibilities" when his employment was terminated. This did not constitute irreparable harm. The court also found there was no irreparable harm to the team, which had another coach to prepare it for the World Cup. Since FHC had lost confidence in Milkovich's ability to coach the team and enmity had built up in the circumstances around his termination followed by his grievance, the court found "reinstatement would impose an intenable relationship." In addition, another switch in coaches in the months leading up to the World Cup would be even more disruptive to the team, said the court. "FHC decided to terminate Mr. Milkovich's employment which, as any employer, it is entitled to do," said the court. "FHC considers that its dream of the (world junior national team) attending and succeeding at the World Cup can be attained without Mr. Milkovich's participation." The court dismissed Milkovich's claim for an injunction to reinstate him as coach of the team. CELT Published by Canadian HR Reporter, a Thomson Reuters business 2013 5

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