A former Yukon government employee and self-proclaimed whistleblower who alleges he was fired after disclosing workplace abuse and discrimination appeared before a judge in Whitehorse May 24 seeking a judicial review of his termination.
The Yukon government, though, argued that the discrimination allegations and the man’s termination were two separate issues, and that he was fired not because of his complaint, but because of his inappropriate workplace behaviour — which included constantly recording every interaction he had with anyone.
Andrew Schaer was hired as a senior business development advisor with the Department of Economic Development May 10, 2017 and was placed on a standard six-month probation period, which was then extended. He’s asking Yukon Supreme Court Justice Leigh Gower to issue an order nullifying his Nov. 8, 2017 dismissal, which occurred while he was still on probation.
In his petition to the court, and in person Thursday, Schaer alleged that he wasn’t “rejected on probation” as per the Yukon government, but, in fact, was “‘terminated’ for disciplinary reasons” after telling his superiors about months of alleged discrimination, abuse, bullying and intimidation at the hands of coworkers — all of which he had captured on audio tape.
Among Schaer’s recordings, as the News and StarMetro Vancouver reported, was a September 2017 meeting where Schaer captured two colleagues making disparaging comments about First Nations education.
He also claimed, among other things, that he faced linguistic and religious discrimination: on one occasion, Schaer alleged, another senior business developer, Ian Young, heard him speaking French on the phone and told him to “Take that fucking French shit someplace else.” In another instance, Schaer claimed his director, Eddie Rideout, said “Jesus fucking Christ” while critiquing one of his reports, adding that Rideout knew he was a devout Christian because he said grace before eating lunch at his desk every day.
The Yukon government failed to not only investigate the discrimination claims, Schaer said, but fired him for reporting them, violating the Public Service Act, Human Rights Act, Public Interest Disclosure of Wrongdoing Act and the Criminal Code of Canada in the process.
Schaer, who represented himself in court, also took issues with several aspects of his employment, accusing the Yukon government of failing to provide him with proper performance evaluation and feedback and unjustly extending his original six-month period of probation.
He pointed to an email from human resources director Charmaine Chung, who wrongly believed that Rideout, as Schaer’s director, had the authority to extend Schaer’s initial probation when, in fact, only the deputy minister has that power.
Schaer said it was “alarming” Chung wasn’t aware of that and that her ignorance might explain why there was an “escalation” of wrongdoing.
“Somebody, somewhere felt that they could do it because nobody’s watching and the boss is in on it,” he said.
Schaer said his Nov. 3 probation extension meeting, during which Rideout and assistant deputy minister (ADM) Stephen Rose presented him with a probation extension letter from deputy minister Justin Ferby, was “impromptu (and) ad hoc.” He told the court that it was at that point, he asked Rose to speak privately, and then told him about the all the alleged human rights violations and recordings.
Schaer said he asked Rose to rectify the situation and sent a “whistleblowing email” to Ferby, Rose and Economic Development Minister Ranj Pillai following the meeting. Schaer also later forwarded the message to Public Service Commissioner Thomas Ullyett and Yukon Employees Union executive director Laura Hureau.
However, Schaer said, no action was taken — there was only a memo where Rose writes that he would not “walk back” Schaer’s probation extension and would not deny that their conversation happened, but would not raise it, either.
“The ADM is saying, ‘Look, I’m not going to raise this conversation,’” Schaer said. “It’s peremptory on the employer to raise the conversation. I beg to differ.”
He also took issue with claims that he was difficult to work with, and pointed out that two emails accusing him of being aggressive or dominating meetings were only forwarded to Ferby four days after the deputy minister approved his probation extension.
“It begs the question that either (Ferby) … is a time traveller or a psychic friend, or he has some explaining to do,” he said, accusing the Yukon government of “playing fast and loose with the facts.”
Schaer also said the government only “opened the kimono” — referring to its disclosure of documents related to Schaer’s termination — following a court order in March.
Ferby, who was present in court Thursday, is partly of Japanese ancestry.
Schaer was reminded at several points throughout his submissions by Gower that he was running out of time or that he was expressing opinions, not facts, with at least two of the exchanges between Schaer and the judge growing heated.
“If you’re going to talk over me the way you’re accused of talking over clients in meetings, that’s not going to happen in this courtroom…. Get on with it,” Gower said at one point.
In his submissions, Yukon government lawyer I. H. Fraser argued that Schaer’s whistleblowing and the termination of his probation were not related — instead, it was Schaer’s general workplace conduct that made him “unsuitable” for the job.
While Schaer’s discrimination allegations were worthy of investigation, Fraser said, it was “legitimate performance concerns” with Schaer and his “flat-out” refusal to address them that lead to his firing. Schaer was correct in asserting that his constant recording of everybody, all the time, contributed to his dismissal, Fraser added — the revelation that he was doing so “poisoned” and “effectively destroyed” his colleagues’ trust in him.
“Mr. Schaer simply rejects concerns…. He doesn’t understand how other people are perceiving their interactions with him, and that colours his whole attitude towards concerns that are raised,” Fraser said.
The extension of Schaer’s probation, Fraser argued, was actually done in “good faith.” He acknowledged that Schaer had not received a formal review during his first six months, which is why his probation was extended — while there were major performance issues, Fraser said, the department was giving Schaer more time to get feedback and respond to it.
However, that all fell apart during the Nov. 3 probation extension meeting, Fraser said, painting a different picture of the private meeting Schaer had with Rose. Fraser claimed that, in fact, Schaer had presented the discrimination allegations and recordings as a sort of bargaining chip to get himself out of probation and into a permanent position.
During that meeting, Fraser said, Schaer had said he didn’t like going to unions or filing grievances, and took a position that was essentially, “give me a permanent job and this will all go away.” Rose’s memo, in which he said he would not deny the meeting happened nor raise it, was in response to Schaer’s attempt to bargain and apparent unwillingness to file a formal complaint about the discrimination.
That alone, Fraser said, was an illustration of Schaer’s unsuitability as an employee.
“It’s not the whistleblowing. It’s what Mr. Schaer did,” Fraser said.
Fraser also rebutted Schaer’s accusation that there was no investigation, stating that there were several explicit mentions of one in Ferby’s affidavits. None of the documents disclosed during the court process mention one, he claimed, because the court order to share documents only extended to those related to Schaer’s termination and the investigation took place afterwards
In his reply, Schaer dismissed Fraser’s arguments as “a bunch of spin” and described his former colleagues and superiors as “terrible two-year-olds with Alzheimer’s.”
His constant recording didn’t break any laws or policies, he said, and the department did not address the discrimination claims that triggered his recording in the first place — instead, they just fired him.
“If this isn’t bad faith, I don’t know what is,” Schaer said. “C’est dégueulasse (it’s disgusting).”
Gower reserved his decision.
Contact Jackie Hong at firstname.lastname@example.org