A former territorial government senior business developer has pleaded his case to the Yukon Court of Appeal to overturn a decision to dismiss his application for judicial review of his termination and lift an injunction against him.

Andrew Schaer argued his case Friday, with the appeal being heard by Justices Shannon Smallwood, John Savage and Barbara Fisher.

Schaer argued that he was fired for disciplinary reasons but that the government disguised it as a release on probation.

He took the court through the sequence of events that led to his dismissal.

He alleged to have witnessed and said he was victim to systemic discrimination in the workplace, beginning two days into his employment. He was hired on May 10, 2017, and alleged he was a victim of both linguistic and religious discrimination.

He claims that a co-worker made a comment indicating that speaking French was not welcome in the workplace. Schaer said he was speaking to a federal government employee on the phone at the time.

He explained upon questioning that he did not raise this concern with his superiors because he felt he would be reprised against.

“I didn’t want to rock the boat,” he said.

As for the religious discrimination, Schaer alleges that his direct supervisor constantly took the Lord’s name in vain during one of their conversations.

Schaer, a practising Christian, took offence to this.

He explained that he would take his lunches at his desk and pray before eating, thus his faith should have been known. He argued this was a targeted attempt to get him out of the workplace.

He told the court he witnessed and recorded a conversation between co-workers who were mocking First Nations.

He decided to digitally record conversations under first party consent laws because he wanted to have proof of what was happening. This was after he alleges being told his employment wouldn’t last if he became a “liability.”

Schaer would bring the incidents to his employer’s attention when he learned his probation would be extended a further six months. He said he was at his wits’ end by this time.

Schaer told the court he brought the incidents to the attention of Steven Rose, the Corporate Planning and Economic Policy assistant deputy minister.

He alleges that Rose told him he would not do anything about it. After hearing that, Schaer felt he had no other choice but to blow the whistle.

“He (Rose) forced my hand,” Schaer said.

He argued that as per Section 35 of the Yukon Human Rights Act, an employer must rectify cases of discrimination upon learning of it. He added that employers become responsible for the discrimination provided nothing is done.

He argued that this meant laws were broken. He thus argued that Justice Leigh Gower, in his October decision, had been mistaken to determine that although the reported comments were inappropriate for the workplace, none of it was illegal. He argued that the comments were a violation of a territorial statute.

He also argued that the government did not fully comply with Gower’s disclosure order prior to the spring hearing subject of this appeal.

The missing disclosure, he believed, was the reason and analysis of his firing. Schaer alleges he never received this document, and Gower did not consider this in his decision.

Schaer then told the court that Justin Ferbey, Economic Development’s deputy minister, said his termination was a release on probation while the human resources department ruled as a disciplinary due to him recording people.

He alleges he was locked in a room on Nov. 8, the day of his termination, in an attempt to confiscate the recordings.

He explained his employer wanted to search his bag without a warrant. Schaer eventually called the RCMP, after which he was permitted to leave. He said this is bad faith criminal behaviour that Gower did not consider in his decision.

He also pointed out that Gower had been wrong to declare that he is not a whistleblower.

He argues he is a whistleblower under the Yukon Public Interest Disclosure of Wrongdoing Act. He added he is entitled to protection under common law.

The next error he pointed out was Gower saying options other than a judicial review were available.

Schaer explained this was not the case because the Yukon Employees’ Union (YEU) refused to represent him.

“The union cut me off and hung me out to dry,” he said.

He added he took the matter up with the YEU in a timely manner. The union was made aware of the situation, when Schaer sent out an email disclosing the incidences.

The recipients included Deputy Premier Ranj Pillai, Ferbey and Rose on Nov. 3. On Nov. 5, he sent the information to the union.

I. H. Fraser, the lawyer representing the government, argued that Schaer’s employer had reasonable grounds to release him on probation. He said Gower supported this and maintained that Schaer was not fired for whistleblowing.

In this case, he said, there was no need for a judicial review. He said that Gower had a right to use his discretion.

Fraser argued that Schaer tried to use his recordings to leverage a permanent job from Rose. He explained that Rose did not follow up on Schaer’s complaints of discrimination because it was not his responsibility, as it was Schaer’s responsibility to pursue this.

He explained the government did investigate Schaer’s claims, as per Ferbey’s evidence.

He added that Schaer could have received adjudication through the union, and if he was unhappy with the results, he could have appealed the union decision.

Fraser pointed out that Schaer did appeal the union decision. He explained that after the appeal failed, Schaer could have pursued the union.

If the adjudicator deems termination legitimate, Fraser explained, there is no more relief.

He said Gower relied on this for his decision.

In response, Schaer said there were not many reasons to release him on probation. The only issue he recalled was a complaint against him, of being too aggressive in idea generation.

He said management brought up this issue with him, but said it was walked back on two occasions. He said he could not think of any other complaint.

As for union representation, he explained that YEU will not represent a worker until after the probationary period concludes. He added that he was fired the same day he met with the YEU.

The three justices reserved their decision to a later date.