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LABOUR RELATIONS - Employees - Probationary employees

Wednesday, August 07, 2019 @ 8:04 AM  


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Appeal by Schaer from the dismissal of his application for judicial review of the respondent’s decision to dismiss him for cause from his employment during his probationary period. The appellant was hired as a Senior Business Development Advisor. The respondent decided to extend the appellant’s probationary period for six months to address performance issues that were raised. After being notified of the extension, the appellant admitted that he digitally recorded conversations and meetings with co-workers and external stakeholders, complained about the extension of his probationary period, complained that he did not receive feedback on his job performance as required by the Collective Agreement, and made a number of allegations of harassment, bullying and abuse of authority that he claimed to have experienced in the workplace. The respondent asked the appellant to meet with his supervisor to discuss how to address the performance issue. When the appellant refused to engage in further discussions relating to his performance issues, the respondent terminated him, finding that the appellant’s refusal to participate in such discussions made it impossible to engage in meaningful dialogue regarding his performance and conduct and concluded that the employment relationship was no longer tenable.

HELD: Appeal dismissed. While the chambers judge did not give deference to the decision maker but undertook his own analysis and made his own determination of the issues, the respondent’s decision to terminate the appellant’s employment withstood scrutiny on either a reasonableness or a correctness standard. The appellant’s conduct was sufficient to justify rejection on probation. The revelation that he was 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. As there was a legitimate performance-related reason to reject the appellant on probation, the respondent’s decision was reasonable.

Schaer v. Yukon (Department of Economic Development), [2019] Y.J. No. 56, Yukon Territory Court of Appeal, J.E.D. Savage, B. Fisher and Smallwood JJ.A., June 28, 2019. Digest No. TLD-August52019006