No award for whistleblower

Merk v. International Assn. of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, 2002 SKPC 78

Merk brought a private prosecution against her former employer, Local 771 of the Ironworkers Union. She alleged she had been terminated by the executive board of the local because she reported financial improprieties by the business manager and president of the local.

She was concerned about questionable expenses being charged to the union credit card, including payments to the president of the local of a yearly salary, although he already received a salary, and of his rent. The alleged unlawful conduct also included getting advances for hotel and travel expenses, charging the same expenses to the union credit card and not reimbursing for any overpayment.

An investigator was assigned by the union to look into the matter, and concluded the problem was that union bylaws did not specifically state it was not permissible to collect more than once for the same expense. The court dismissed the investigator’s conclusions as ridiculous and completely inappropriate.

Following the investigation Merk wrote a letter dated Oct. 19, 2001, to the general president of the union threatening to go the police if nothing was done. She received a letter of termination from the union on Nov. 5, 2001. Despite the timing of the termination, the union established at trial the decision to dismiss her had been made on Sept. 21, 2001.

The court held the union had terminated Merk’s employment as a result of her complaints regarding various expense claims. It further held she was justified in her concern the expense payments were improper and possibly fraudulent.

It was not necessary for her to demonstrate proof beyond a reasonable doubt an offence had occurred. But in order to convict the union of an offence it was necessary for the court to find beyond a reasonable doubt that Merk’s threat to go to the police was the cause of her dismissal.

The court could not make this finding given the union’s evidence the decision to terminate her had been made prior to the letter in which she threatened to go to the police. On this basis the charge was dismissed.

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