NHLPA fires Paul Kelly (UPD: player review of firing completed)
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09-02-2009, 12:33 PM
Join Date: Sep 2003
Location: Out There
Originally Posted by
Well here's the part where I have a problem lining that up with what I've gathered from the various quotes and interviews in the media:
First of all, we have the players reporting problems a year ago. Then the 3 page Lindros letter of February. Then players reporting more problems in June. Then from this meeting:
a) No one brought up Pink's report in the media that I've seen
b) Hargrove claimed his report was done by him and exclusively under the role of Ombudsman - just reporting the facts of his findings with no opinion.
c) I believe it was Hargrove who said it was a reps only meeting - no Pink, Hargrove, Kelly or Lindros (who wasn't there) in constant attendance. Hargrove for example was brought in to specifically answer questions about his report for clarification and then left the meeting.
d) A group of four player reps and a HR consultant they hired went around and interviewed every NHLPA employee to confirm the information they had found out. And they reported that directly to the reps - with no Pink, Hargrove, Lindros directly in that loop.
That last point (d) is significant because it's pretty tough to put a powerplay hit piece together and have it survive that sort of scrutiny unless there's merit to it. And these folks who are being suggested as making a powerplay were not in the meetings full time to influence the reps as they reviewed the facts and findings.
Hargrove (emphatically), Penny and Pink have all been reported as stating they will not accept the full time directors position. So if they were making a power play, they're apparently not accepting the power.
Therefore, although I don't know enough of the whole story to be certain, I can't conclude that I'm very convinced of a true powerplay being made. If I had to bet on it, I think there were problems raised by various parties over the past year and those problems were thoroughly looked into by player reps. As a result, Kelly was dumped with good reason(s) that were verified by those reps.
Ron Pink has been mentioned in any number of reports. I have not seen a report where he has ruled himself out of the running for Executive Director. I was told by sources that I trust that it was Ron Pink who was the driving force behind this plan with inside information coming from within the NHLPA office. It could not have been Lindros as he was gone.
I have never claimed that Hargrove would make a bid for Executive Director.
Ian Penny was reported to be on his way out of the NHLPA if Kelly remained.
Penny has worked as a staff counsel for the National Hockey League Players' Association since 2000 and was named general counsel in 2007. Kelly had been at odds with Penny, members of the NHLPA's outside advisory board, ombudsman Buzz Hargrove and members of the NHLPA staff, sources said.
Eric Lindros resigned but there have been a number of reports that this was forced resignation and that he and Kelly had a very poor relationship. Given Lindros' history with his employers that is not difficult to believe.
Bill Watters seems to think that the affair was driven by Ian Penny and Ron Pink. IMHO there is no way that Buzz Hargrove was capable of writing the extensive and detailed report that he presented but I have no doubt his actual presentation was good, probably even compelling.
When I was a young associate (i.e employee) lawyer, one of the partners who specialized in litigation was one of the most effective advocates I have ever seen work a courtroom or tribunal hearing. However he could not research to save his life and his writing was not all that great. However put him at the bar with the research done and the argument written and he was hell on wheels - my job was to prepare him. BTW when I left the firm several of the biggest clients followed me because it had became apparent that I was doing all the spade work.
That is my sense of how Hargrove operated.
I just listened again to Leaf's Lunch where Darren Dreger walked through the process as he was camped out on the doorstep at the hotel ballroom.
What was criticized by both Dreger and Watters was that the case against Kelly was presented over many hours by Hargrove and was supported by an anonymous letter that according to them was extremely detailed and came from within the NHLPA offices. Watters thinks it was Penney. Watters says Kelly's big mistake was not removing Penney the moment he came on board.
There was also apparently a report from an outside consultant. Kelly was not given the opportunity to review either report.
Watters describe the process as a "crucifixion" and "seven hours of punching Paul Kelly in the face". Dreger was little less graphic but said much the same thing about it being a smear job.
Watters also referred to the NHLPA spending money like it was water and that Kelly was trying to do something about that.
What was most startling to me from a legal perspective was that at no time was Kelly given the opportunity to review the evidence against before being allowed to speak. Dreger and Watters were very clear on that point. It is pretty difficult to answer detailed allegations that are sprung on you at the last moment. Trial by ambush went out of favour in our court system decades ago.
The most basic rule of termination of an employment contract is that you must give the employee an opportunity to see the case being made against him and to have an opportunity to respond. Every labour lawyer knows this and Ron Pink is a well-known labour lawyer.
It is also well established that if there is a concern about such things as performance, management style, etc. that the employee must be presented with the details and given an opportunity to correct the alleged problems. There must be what is referred to as "progressive discipline" - oral meetings outlining the issues, opportunity to correct, further review, written notification, opportunity to correct and finally termination.
In certain limited cases there may be a single act so egregious that it constitutes legal cause and in that case the employer may be justified in immediate termination. Of course you would then have to prove your position in court should the employee subsequently challenge the termination as being for cause.
This is basic employment law and well-known by any run of the mill HR professional let alone a labour lawyer. This is on Page 1 of "Employment Law for Dummies".
This is not one of those limited cases according to Buzz Hargrove himself:
"Paul Kelly's been here for 21 months, and there's been a lot of issues during that 21 months," Hargrove told Sportsnet. "And it reflected the concern of the players, or lack of confidence in Paul to be able to resolve these ongoing issues that just keep coming up and festering and getting larger. And it was really about trust and confidence in his leadership style more than anything else."
"They didn't want to wait until it was too late," Hargrove said. "If we waited until next year, you're almost on the doorstep of the opening of negotiations and they didn't want then to be caught with someone they didn't really think was able to unify and pull the group together and get them all working together. 'Trust and confidence' were the words they used and I think that's used appropriately."
The statement from the Executive Board announcing Kelly's termination:
"After a full review of the overall health of the office and the Association, it became clear Paul Kelly was not the right individual for the Executive Director's role going forward.
The Executive Board had to make the decision we made today in the best interest of our membership. The decision made was in part the result of the checks and balances we now have in our Constitution. While it is unfortunate things didn't work out with Paul Kelly, we made an informed decision. It is the right decision and we know what we did what was best for our association."
Here is good summary of the law on termination for cause.
It is impossible to outline all the activities that would constitute cause and each case turns on its facts. But, as a generalization, where an employee has engaged in any of the following it has been held to be cause for discharge:
1. Serious misconduct: Theft, dishonesty and assault are generally held to be serious misconduct.
Conduct such as absenteeism, lateness and poor performance is usually not serious misconduct unless there has been some form of progressive discipline.
2. Habitual neglect of duty or incompetence: For this to be cause, the employee has to clearly understand the requirements of the job,
the requirements have to be reasonable and despite the problems being brought to the employee’s attention, assistance offered. A reasonable time period must be given for improvement.
In terminating an employee for cause, the onus is on the employer to prove the existence of just cause beyond the balance of probabilities. The finding of cause must be based on real incompetence or misconduct, rather than simple dissatisfaction with performance or concern as to a potential misconduct. Where the employer is unable to demonstrate cause, an employee will be entitled to damages for wrongful dismissal. It should be noted that the Supreme Court of Canada has emphatically rejected the “near cause” principle.1 (The “near case” concept would have permitted a court to reduce the damages of a wrongfully dismissed employee in
cases where the employee’s work record was not ideal but not enough to justify dismissal.)
It is my understanding that the NHLPA is intending to pay out Kelly under the termination provisions of his contract. If so then there will be no lawsuit for wrongful dismissal. I would certainly expect that as part of the payment and settlement of these matters there will be mutual releases signed that will incorporate confidentiality clauses
Given what has occurred and the manner in which appears this is going to be resolved, speculation may be the best we get.
Based upon what I have observed, what I have been told and what has been reported (principally from Darren Dreger who was the only media rep to be there from start to finish and who broke the initial story of Paul Kelly's job being in jeopardy), I believe the hatchet job on Kelly was part of a well-planned strategy from a faction within the NHLPA. The idea was to blitz Kelly, give him no opportunity to see the case against him and respond and then overwhelm the player reps with a litany of minor complaints.
Ian Penny had his contract extended without Paul Kelly being involved (how is that for strange) - in fact there are reports that Kelly was recommending that Penny not be extended and another general counsel be hired. The name I heard as being the replacement from two of my sources was Ian Pulver who had worked with Goodenow. Penny was in place to step into Kelly's shoes if the faction could persuade the player reps to remove Kelly.
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