Canadian Employment Law Today

CELT May 1 2013:celt 467.qxd 13-04-29 10:43 AM Page 4 May 1, 2013 CASE IN POINT: INJUNCTIONS Field hockey coach denied reinstatement during trial Coach's absence during World Cup preparation wouldn't bring irreparable harm if complaint successful: Court BACKGROUND Trying to stick around ONE OF the remedies a court or arbitrator can award an employee who wins a wrongful dismissal case is reinstatement. As long as things haven't become too damaged to make the employment relationship unworkable, reinstatement can be the simplest way to rectify the damages from a dismissal. However, a court case or arbitration can take a long time, and if the employee wins the case, it might not be enough to make up for lost time. Sometimes an injunction will be sought to let the employee back until a final decision is made. One example of such a situation could be the coach of a team preparing for a big tournament. However, the bar is set pretty high for such an injunction to be granted, as the former coach of the Canadian junior women's field hockey team discovered. | BY JEFFREY R. SMITH | THE BRITISH COLUMBIA Supreme Court has denied the former coach of the Canadian junior women's field hockey team an injunction to be reinstated during World Cup preparation while his complaint over his dismissal is tried. Peter Milkovich was player for the Canadian national men's field hockey team for several years and was hired in September 2011 to coach the women's junior national in preparation for the junior world cup finals in 2013. Milkovich was hired by Field Hockey Canada (FHC), which is a private, notfor-profit corporation that serves as the national governing body for field hockey. The FHC, run by a board of directors, has several established policies including a code of conduct, an ethics policy, an employee policy, a discipline policy, an appeals policy and a harassment policy. Milkovich's contract was set to 4 expire on Dec. 31, 2013, following the Junior World Cup tournament, which was scheduled to take place that month. The contract also specified a three-month probation period when he was hired, followed by a performance review. Either party was allowed to terminate the contract with a minimum of two weeks' written notice, and FHC was entitled to terminate if Milkovich "fails to perform the duties specified in the contract in a manner satisfactory to the association, or fails to fulfill any other terms of this contract." Coaching style caused problems Milkovich had an aggressive style of coaching that started causing problems with members on the team, other coaches and officials at field hockey tournaments. In June 2012, FHC received complaints from some of the members of the junior national team. The complaints alleged Milkovich used inappropriate language and verbally abused some of the players. He was also accused of encouraging underage drinking. FHC retained an HR consultant to review the junior women's field hockey program. In late June 2012, FHC reviewed the report and prepared a "strongly worded warning letter" to Milkovich about inappropriate behaviour to be sent to him after the Canadian national championships, which were beginning on June 29. FHC also prepared a draft suspension letter, which it intended to send to Milkovich if he showed any in appropriate behaviour during the tournament. However, a member of FHC's high performance committee mistakenly sent the suspension letter to Milkovich on the eve of the national championships, resulting in Milkovich missing the tournament. Milkovich didn't think he was suspended in error and accused FHC of not following its own disciplinary policies and procedures. He was reinstated on July 3, but told he was not to us any inappropriate or aggressive behaviour towards the players when the team went to Europe later that month. Milkovich claimed that at his reinstatement meeting, FHC acknowledged Milkovich's concerns about the process that led to his suspension and agreed to abide by the spirit of its code of conduct, which included the principles of honesty, openness, transparency, fairness, accountability and commitment. He said he was told there would be no further decisions regarding his employment during the informal review of the program, but FHC denied Published by Canadian HR Reporter, a Thomson Reuters business 2013 Continued on page 5

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