The Yukon Court of Appeal has dismissed the case of an ex-Yukon government senior business development advisor who claimed he was unjustly fired while on probation.
In a unanimous decision released June 28, Justices Shannon Smallwood, Barbara Fisher and John Savage reaffirmed that the Yukon government had valid reasons to fire Andrew Schaer, despite the trial judge taking an erroneous approach to reviewing the matter.
Schaer filed a petition against the Yukon government’s department of economic development and its deputy minister Justin Ferby in 2018, seeking a judicial review of Ferby’s decision to fire him.
He claimed, among other things, that he had been subject to harassment in the workplace early on in his employment, and as a result, began making secret audio recording of conversations that happened around him.
Among the recordings, some of which Schaer shared on Twitter, was audio of senior officials calling the Yukon College’s Institute for Indigenous Self-Determination “bullshit” and mocking the graduation rates of Indigenous students.
Yukon Supreme Court Justice Leigh Gower dismissed Schaer’s petition in October 2018, finding that Ferby was justified in firing Schaer, in part because of all his secret recordings.
Both Smallwood and Fisher provided written reasonsings for the Court of Appeal’s decision.
In her reasonings, Fisher wrote that while the trial judge had incorrectly identified and applied the standard of review, treating the case as an appellate review rather than a judicial review, given the evidence before the court, Ferby’s decision to fire Schaer was “reasonable.”
The evidence, Smallwood outlined in her reasonings, included Schaer’s refusal to attend a meeting to address workplace performance concerns, and, primarily, his admission that he had been clandestinely recording conversations with “all internal and external stakeholders.”
“The revelation that Mr. Schaer had been secretly recording all co-workers and external stakeholders took an employment relationship with some performance-based concerns to the breaking point, resulting in the complete breakdown of trust in that relationship,” she wrote. “In my view, a dismissal motivated by such a breakdown constitutes cause for dismissal…”
Smallwood also dismissed Schaer’s description of himself as a “whistleblower,” noting that the conduct he was complaining about, while at times inappropriate for a workplace, were neither illegal nor jeopardized “the life, health or safety of the public servant or others.”
Schaer also only came forward with his complaints until after he was notified that his probationary period was being extended, Smallwood wrote, even though he had apparently been making recordings since the start of his employment.
“A review of the Deputy Minister’s decision reveals that there was a legitimate performance-related reason for rejecting Mr. Schaer on probation, which was supported by the evidence, and that the decision falls within the range of possible, acceptable outcomes,” Smallwood wrote. “For these reasons, I would dismiss the appeal with costs to the Government of Yukon.”
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