Canadian Employment Law Today

June 3, 2020

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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©2020 HAB Press Limited, a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under license by HAB Press Limited. CANADIAN EMPLOYMENT LAW TODAY is a trademark of HAB Press Limited. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 70318 4911 RT0001 How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE 20 Duncan St. 3rd Floor, Toronto, ON M5H 3G8 President: Tim Duce Editor: Jeffrey R. Smith Email: Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: Phone: (416) 644-8740 x 236 Marketing Co-ordinator: Keith Fulford Email: Phone: (416) 649-9585 HAB Press Ltd. Probationary dismissal or whistleblower retaliation? THIS INSTALMENT of You Make the Call in- volves 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 neces- sary, 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 perfor- mance 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, argu- ing that he had not received feedback on his job performance as required by the collective agreement. Schaer also made allegations of harass- ment, 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 pro- bation pursuant to the Yukon Public Service Act, which allows rejection for cause by writ- ten notice of an employee during the extended probationary period. Schaer contested his release, reiterating that he had not been told of any performance is- sues before the extension of his probationary period and contending that he had been re- leased without cause. He also suggested that his dismissal was retaliation for being a whis- tleblower. YOU MAKE THE CALL 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 is- sues in the Nov. 3 letter and meeting, dur- ing 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 ex- tension 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 allega- tions 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 admit- ted 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 consti- tute 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 intend- ed to be used in exceptional circumstances to expose government wrongdoing and to justify the employee's breach of their com- mon law duty of loyalty to their employer and their oath of secrecy." It was not in- tended to be "a licence for disgruntled em- ployees to breach their duty of loyalty," the court said in dismissing Schaer's appeal and upholding the dismissal. For more information, see: • Schaer v. Yukon (Department of Economic Development), 2019 YKCA 11 (Yukon C.A.). The worker's six-month probation was extended due to performance issues, which were listed in a letter. The employee didn't make harassment allegations until after extension of probation.

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