By Howard Levitt

There is a misconception that there’s a difference between protecting one’s own legal interests versus that of the public

The former CEO of Alberta Health Services (AHS), Athana Mentzelopoulos, recently filed a $1.7 million wrongful dismissal suit against AHS and the province, levelling allegations of impropriety and high-level government interference in ongoing investigations into private surgical contracts — a move now garnering significant public attention across the province and beyond.

Politics aside, there is nothing special about this case from an employment law perspective, no matter how much controversy surrounds it. There is a common misconception that there is a difference between protecting one’s own legal interests versus that of other employees or the public at large when the two become inextricably entangled in wrongful dismissal lawsuits. This confusion often results in a loss on both fronts.

Understanding the legal landscape

When it comes to an employee’s wrongful dismissal lawsuit, the courts focus on two main questions:

Did the employer comply with the express or implied terms of the employee’s contract such as paying appropriate severance, or their duty to perform the contract honestly and in good faith? And,
Did the employer comply with its legislated obligations, such as employment standards rules and human rights legislation?

If the answer to both of these questions is yes, there is no wrongful dismissal and there are no damages owed to the employee. End of story.

The AHS perspective

As an employer, AHS retains broad discretion to terminate employment so long as the reasons for dismissal do not infringe upon an employee’s human rights and the dismissal aligns with contractual obligations. The CEO’s allegations against AHS and the government are incendiary, politically charged and controversial, however, none of them remove AHS’ legal rights as her employer to terminate the relationship for any number of reasons, including “she isn’t a good fit,” or “she isn’t advancing the overarching organizational objectives,” or “we don’t like her.”

We call this a termination without just cause, for which the employer need only show compliance with its contractual and statutory obligations, typically by providing termination pay or severance required under the contract or common law. If an employer meet its obligations, there is no legal recourse available to the employee, no matter how “capricious” or “arbitrary” the reasoning may be.

The difference between wrongful dismissal litigation and whistleblower complaints

The litigant

For an individual pursuing a wrongful dismissal claim, the burden of proof lies in demonstrating that the termination breached contractual terms. This might involve showing that proper notice or severance was not given, or that the dismissal process was flawed.

In the CEO’s case, it may be that AHS is refusing to pay an amount in satisfaction of her entitlement under the contract, or AHS is attempting to rely on a termination provision in the employment contract which is legally unenforceable. If so, the CEO has been wrongfully dismissed and is entitled to compensation for these losses.

It’s also possible that AHS violated its duty to conduct itself honestly and in good faith in the performance of its contractual duties, giving rise to additional damage claims.

But these damages will, by and large, have nothing to do with the salacious and inflammatory dealings between AHS and private surgical clinics. Unlike in other parts of the world, we are fortunate in Canada to have judges who go to work each day and dispassionately apply the law to the facts in each particular case, regardless of the political or populist noise blaring from all directions. The court will do the same in this case.

Employees who find themselves dismissed — whether with or without cause — understandably feel a sense of aggrievement, bitterness and animosity towards their former employers. They want accountability, justice and closure, and the legal system can deliver this — albeit within the confines of the law. However, the court is not the proper forum for a public inquiry into alleged wrongs, missteps or even corruption ifit is irrelevant or immaterial to the legal claim itself.

Unless the former AHS CEO took the required steps to invoke whistleblower protection, she is properly characterized as a litigant.

The whistleblower

A whistleblower’s claims centre on an entirely different premise than that of a litigant. These claims are based on the legal protections afforded to employees who expose wrongdoing, missteps or corruption within their organization, including those found in whistleblower protection laws. The point is to disclose the concerns proactively to avoid reprisal or retaliation by the employer rather than retaliating against the employer when they fire you.

An employee who is terminated, demoted or harassed as a result of their disclosures under whistleblower protection laws may apply for a remedy such as reinstatement or lost wages (among others) on account of the employer’s act of reprisal.

If the former AHS CEO had concerns about government interference in AHS’ dealings with third-party vendors, there would be a forum and process at her disposal — a process affording her job protection while also serving as an outlet to expose whatever alleged corruption, gross mismanagement or systemic impurities she was aware of.

Instead, this came to light post termination, through a wrongful dismissal lawsuit in which the litigant is seeking $1.7 million. Not only is it unclear how these allegations will assist in proving her case, but it may backfire altogether, potentially leaving many with the impression that the CEO is just another disgruntled government executive.

Implications for public sector employees

Have a clearly defined objective: If the goal is to enforce your individual employment law rights and obtain a legal remedy, work with an employment lawyer to develop a focused strategy in support of that goal. If, on the other hand, your priority is to expose wrongdoing and protect the public interest, you are well advised to consider other options, including blowing the whistle through whistleblower protection channels.
Blow the whistle: If you have genuine concerns of corruption, cronyism or unethical behaviour that compromises the public interest, don’t wait until your employment is terminated before disclosing them. Speak to an employment lawyer to understand your statutory rights and protections beforehand.
Know the difference between the public interest and your interest: While public and quasi-public organizations have a unique responsibility to the public interest and may fail miserably in living up to this responsibility, such failings do not translate into grounds for an individual employee’s lawsuit — absent evidence that such conduct (or lack thereof) substantially breached a term of their own employment contract. Drawing this link is a challenge in even the most obvious cases.
Don’t overestimate your narrative: Many employees who seek to expose an employer for misdeeds do so with the naïve expectation that their story will be told as they see it. Avoid making this assumption. The media’s focus is on getting to the bottom of the issue, covering multiple stakeholders all presenting their own narratives, with the final product seldom resembling the employee’s initial perspective.

For those facing similar disputes, consultation with experienced employment counsel can provide clarity and ensure that any claim — whether for wrongful dismissal or whistleblower retaliation — is robustly and appropriately pursued.