Canadian Employment Law Today

Canadian Employment Law Today Canadian Employment Law Today | | 3 Cases and Trends Cases and Trends Canadian HR Reporter, 2020 Bad news for New Brunswick newspaper's managing editor Managing editor's failure to reveal all information during investigation into potential conflict of interest breached trust and put company's credibility at risk BY JEFFREY R. SMITH A NEW BRUNSWICK newspaper company had just cause to dismiss a managing editor for deception and dishonesty during an investiga- tion into a potential conflict of interest by his assistant managing editor, the New Brunswick Court of Queen's Bench has ruled. Alan Hogan, 60, was the managing director of the Moncton Times & Transcript (MTT) — a newspaper in Moncton, N.B. owned by Bruns- wick News Inc. (BNI) — starting in 1997. His role as managing editor included news gather- ing, presentation, publication, budget and per- sonnel management and overseeing the con- tent of the MTT. For the first 13 years of Hogan's stint as man- aging editor, the newspaper was largely autono- mous. However, things began to change in 2010 when BNI was purchased by a larger company, J.D. Irving Ltd. (JDI). JDI created an editor-in- chief position for each of its newspapers and Hogan reported to the editor-in-chief for the MTT, John Wishart. The editor-in-chief reported to the vice president of BNI. JDI had a code of business conduct with principles of integrity and honesty that stated a breach could result in termination of employ- ment. Hogan acknowledged the code and that he had to enforce it with other employees as a managing editor. Conflict of interest concerns In October 2013, Wishart was contacted by a reporter for one of BNI's other newspapers, who told him the MTT's assistant managing editor, Thomas Guy, was on an invitee list to an event put on by the New Brunswick Liquor Corporation. Wishart then contacted Hogan to clarify this, as BNI staff could not accept a gift from the government because it would un- dermine the credibility of its reporting. Hogan emailed Guy and said he should get the list changed, then told Wishart that Guy had never gone as a representative of the pa- per or BNI. Guy asked a deputy minister of communications with the premier's office to remove his name from the guest list for sub- sequent access requests by media — to which the deputy minister agreed — and told Hogan about it. No disciplinary action was taken and Hogan advised Guy he was not to attend the event in the future, either as a representative of BNI or a private citizen, as the optics would be bad. On Nov. 13, the reporter who had originally obtained the invitee list informed Wishart that the provincial government had provided an updated guest list that showed Guy may have attended the event. Wishart told Hogan to fol- low up with Guy and reiterate that he wasn't to attend the event in the future and the matter was considered closed. However, on Feb. 5, 2015, BNI's vice presi- dent was alerted to an allegation from Canada- land, a podcast that examines media operations and reporting, that a senior MTT editor had ac- cepted an invitation to the event as a guest of the Liquor Corporation. BNI management decided to conduct interviews to find out what hap- pened so it could address the situation. Hogan was interviewed by BNI manage- ment and told them Guy had confirmed that he had not attended the event. Because the podcast had suggested this was not the case, they asked Hogan to check his email archives and check again with Guy. Hogan forwarded a chain of emails from October 2013 with the message from Guy that he hadn't attended. Management accepted this and felt the matter was concluded; but shortly thereafter, it learned from the other reporter that the revised attendance list had Guy's sig- nature on it. Hogan was asked again about the situation and why Guy's signature was on the list if he hadn't attended. Management wanted to speak to Guy and Hogan stated that Guy had told him that he had attended the event after all. Man- agement determined Guy had initially lied to Hogan and placed Guy on administrative leave after acknowledging he had attended. Management instructed the IT department to search archived emails. The search revealed an email similar to the one Hogan had passed along, but Hogan had edited it to remove refer- ences to the request to the deputy minister to remove Guy's name from the list and Hogan's advice to Guy to conceal his name — which, since Guy attended, was an attempt to cover up that fact. Dismissal for misleading investigation In a second interview on Feb. 13, 2015, Ho- gan was asked if there were any other emails he hadn't passed along. When he didn't clarify his role in the efforts to amend the attendance list or acknowledged he had altered relevant emails, he was suspended and escorted out. Three days later, on Feb. 16, BNI terminated Hogan's employment for intentionally trying to mislead BNI in its investigation by falsify- ing company records and supporting a subor- dinate's conduct that put BNI in a vulnerable position — which BNI labelled "a grievous breach of trust by any employee, let alone the managing editor of a major New Brunswick newspaper." Hogan filed a wrongful dismissal complaint claiming reasonable notice for termination plus aggravated and punitive damages for the manner in which he was dismissed. The court found that it was clear that Ho- gan altered the relevant email chain before sending it to management. He acknowledged in testimony that he "edited," summarized," "abridged" and deleted some words from the original exchange. While Hogan may have felt he only deleted or changed irrelevant details, as a managing editor, he should have known how seriously BNI took the matter, particularly in the context of the Canadaland inquiry. The court also found that Hogan knew of the efforts to get help from a government rep- resentative — the deputy minister of commu- nications — to amend a public document. Al- though he didn't do it himself, he counselled Guy to get the list changed before it was re- leased to other media and the public. In addi- tion, he breached his obligation to BNI when he failed to advise management of this during the investigation, said the court. The court determined that BNI had just cause for dismissal. Hogan displayed decep- tive behaviour and a lack of judgment during BNI's investigation into Guy's attendance at the government event. This was particularly serious in light of his position of authority and trust and the importance of credibility and public trust for his employer. Hogan's complaint was dismissed. For more information, see: • Hogan v. Brunswick News Inc., 2019 NBQB 267 (N.B. Q.B.).

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