A former Yukon government employee and self-described “whistleblower” who spent months secretly recording every interaction he had at work, including a conversation in which high-ranking officials made disparaging comments about Indigenous education, has had his request for a judicial review of his termination dismissed.
In a decision on Oct. 5, Yukon Supreme Court Justice Leigh Gower ruled that the Yukon government’s Department of Economic Development and, specifically, its deputy minister Justin Ferby, were justified in firing senior business development advisor Andrew Schaer while he was still on probation in 2017.
Schaer, whom the department hired in May 2017 and subsequently fired in November 2017 following extending his standard six-month probationary period, filed a petition to the court earlier this year requesting a judicial review of his termination as well as reinstatement to his position and compensation for lost wages and benefits.
Schaer alleged that he wasn’t “rejected on probation,” as is the right of the Yukon government, but, in fact, was fired because he told his superiors about months of discrimination, abuse, bullying and intimidation at the hands of coworkers and that he had caught it all on audio tape.
In one of the recordings, which Schaer previously shared with the News/StarMetro Vancouver and also posted on social media, a male voice is heard laughing and appears to call the Yukon College’s Institute for Indigenous Self-Determination “bullshit.” The voice, joined by a woman’s, then appear to mock the high school graduation rates of First Nations students.
Schaer also alleged that he was discriminated against on linguistic and religious grounds, saying that he was mocked because he is a Francophone and devout Christian.
The Yukon government, however, argued that Schaer was terminated not for bringing allegations of discrimination forward, but because of his inappropriate workplace behaviour and seeming inability to take direction or criticism.
The matter went to trial in May.
In his decision, Gower rejected Schaer’s assertion that the Yukon government had acted in bad faith when firing him.
Gower noted that Schaer’s superiors had raised performance concerns, including his “aggressive” communication style, with him on a number of occasions, and that Schaer himself had turned down several opportunities to address those concerns or raise workplace concerns of his own.
The judge also found Schaer’s allegation that only one such meeting about his performance took place, and that all subsequent emails and memos about other meetings were either referring back to that one meeting or outright fabrications, were unsubstantiated by evidence, at one point describing Schaer’s reasoning as an “unreasonable and tortuous interpretation of what took place.”
And while he acknowledged that several of the comments that Schaer alleged his colleagues made were “inappropriate in a workplace context,” Gower said he disagreed with Schaer’s assertion that he was acting as a whistleblower and thus, could use that “exceptional circumstance” as a defence.
“None of this conduct can fairly be characterized as the government engaging in ‘illegal acts’ … Nor is this a situation where it can be said that the government’s policies have jeopardized the life, health or safety of the public servant or others,” Gower wrote, adding that affidavits show that Ferby had ordered an investigation into Schaer’s allegations of discrimination and that “appropriate corrective measures were taken.”
“I conclude from all this, that YG had a legitimate employment-related reason to reject Mr. Schaer on probation,” Gower wrote. “This was the complete breakdown of the relationship of trust between him and his employer as a result of the secret digital recordings he had made since the commencement of his employment.
“While one might argue that such conduct might also be grounds for disciplinary action, it is clear from the evidence that YG elected to reject Mr. Schaer on probation rather than take disciplinary action. It had every right to do so.”
Gower also approved an application from the Yukon government barring Schaer from releasing any more of his recordings on the grounds that he was breaching his obligation of confidentiality, and ordered Schaer to pay the government’s legal costs.
Schaer has filed a notice of appeal requesting that Gower’s decision be overturned.
Contact Jackie Hong at firstname.lastname@example.org