You make the call
This instalment of You Make the Call involves a probationary employee who claimed his dismissal was discriminatory.
The Yukon Government’s Department of Economic Development (DED) hired Andrew Schaer on May 10, 2017 to be a senior business development advisor. His employment began with a six-month probationary period and the DED had the option of extending it if necessary, to a maximum of six additional months.
Five months later, the Deputy Minister of Economic Development decided to extend Schaer’s probationary period due to performance issues, which were listed in a letter. He gave the letter to Schaer of the extension on Nov. 3, to which Schaer responded by email that he had been “both documenting and (digitally) sound recording my interaction (conversations and meetings) with all internal and external stakeholders.” He also disputed the extension of his probationary period, arguing that he had not received feedback on his job performance as required by the collective agreement.
Schaer also made allegations of harassment, bullying and abuse of authority in the workplace.
Schaer’s supervisor invited him to meet to address his performance issues that were raised in the letter, but Schaer said that he was no longer engaging in discussions related to the meeting and letter on advice of his legal counsel. Two days later, the DED informed Schaer that it was releasing him from his probation pursuant to the Yukon Public Service Act, which allows rejection for cause by written notice of an employee during the extended probationary period.
Schaer contested his release, reiterating that he had not been told of any performance issues before the extension of his probationary period and contending that he had been released without cause. He also suggested that his dismissal was retaliation for being a whistleblower.
Was the dismissal justified?
OR
Was the dismissal wrongful?
If you said the dismissal was justified, you’re right. The court found that Schaer was properly notified of his performance issues in the Nov. 3 letter and meeting, during which time his probationary period was extended for another six months. Schaer was then given the opportunity to discuss the issues with his supervisor, but he declined and refused any further discussions related to the Nov. 3 meeting and the probation extension letter. Since Schaer refused to engage in any meaningful dialogue about his job performance and workplace conduct, it was appropriate for the DED to determine that the employment relationship was no longer tenable, the court said.
The court also found that Schaer’s allegations of harassment, bullying and abuse of authority after his probationary period was extended was the first time he had brought any such concerns to the DED’s attention. And, once again, Schaer refused to discuss them further after the invitation from his supervisor.
Add to all this the fact that Schaer admitted to secretly recording all co-workers and external stakeholders and “the employment relationship with some performance-based concerns” was taken “to the breaking point, resulting in the complete breakdown of trust in that relationship,” said the court. Such a breakdown was sufficient to constitute cause for dismissal under the Public Service Act, said the court.
As for Schaer’s suggestion of retaliation for being a whistleblower, the court noted that “the ‘whistleblower’ defence is intended to be used in exceptional circumstances to expose government wrongdoing and to justify the employee’s breach of their common law duty of loyalty to their employer and their oath of secrecy.” It was not intended to be “a licence for disgruntled employees to breach their duty of loyalty,” the court said in dismissing Schaer’s appeal.
For more information, see:
- Schaer v. Yukon (Department of Economic Development), 2019 YKCA 11 (Yukon C.A.).
