Unsatisfactory performance not cause to fire radio host: Court

Program director/host fired after he couldn't fulfil duties that changed after hiring

A Saskatchewan radio station didn’t have just cause when it fired a morning show host for unsatisfactory job performance, the Saskatchewan Court of Queen’s Bench has ruled.

Grant Schutte was the program director and an on-air personality with a radio station in Swift Current, Sask., when he was recruited by a station in Melfort, Sask., in December 2001. The Melfort station, CJVR, approached Schutte about a similar role where he would host a morning show and oversee the station’s change to a new format. Shutte agreed to an offer of $3,800 per month that would increase to $4,000 per month on Sept. 1, 2002. CJVR also agreed to pay expenses for his moving, temporary accommodation in Melfort and legal costs associated with the move.

In accepting the position, Schutte sent an e-mail saying he had never spent less than five years at a radio station and was willing to commit to “that same time scale” to CJVR. The station’s general manager responded with the comment “commitment — five years would be a nice start.”

As part of his job at CJVR, Schutte was given a plan to establish the new station format. Soon, however, station management grew unhappy with his performance. It gave him suggestions on how to bring about the change and eventually warned him he could be dismissed if he didn’t improve. By February 2002, Schutte was performing the duties of three positions: program manager, music director and on-air host. This left him with little time to work on the format change.

On Sept. 1, 2002, CJVR increased his salary but only to $3,900 per month instead of the $4,000 originally agreed to because of its dissatisfaction with his performance. Schutte didn’t dispute the decision.

On June 26, 2003, Schutte received a review of his performance that said he would be monitored for 30 days and if he didn’t improve, he would be terminated. At the end of this period, CJVR didn’t see the improvement it wanted and fired Schutte for cause on Aug. 15, 2003.

Schutte sued for breach of contract and wrongful dismissal, claiming he had agreed to a five-year contract and CJVR didn’t have cause to fire him without any notice. The court found Schutte and CJVR didn’t agree to a five-year term and the reference to that period of time was just an indication of their hope it would be a long-term arrangement. Without a fixed term, the contract would be for an indefinite term subject to dismissal for cause or with reasonable notice.

However, the court found there wasn’t sufficient cause to dismiss Schutte without notice. The station’s performance review indicated to Schutte it believed he had “tremendous talent and experience” that shows it was unlikely Schutte had a level of serious incompetence that would be a ground for cause. A March 2003 review by a consultant also recommended assigning musical director duties to another employee to free up Schutte to work on other things.

“The inability or failure to perform may well be more related to inappropriate or inattentive hiring procedures or a change in employment climate rendering the employee less able to meet the employer’s shifting goal rather than employee intransigence or incompetence,” the court said. “To terminate without salary or notice in such event would be inequitable and contrary to the public’s interest in maintaining a stable work force.”

The court ruled Schutte was entitled to reasonable notice, which, considering his skills, the limited availability of alternate employment in Melfort and the fact he had been enticed from previous employment, was five months less his severance, or $15,900. See Schutte v. Radio CJVR Ltd., 2007 CarswellSask 780 (Sask. Q.B.).

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