On June 1, 2013, Alberta’s Public Interest Disclosure (Whistleblower Protection) Act came into force. The Act is designed to protect public sector employees from job reprisal if they report wrongdoing. The Act applies to the Alberta Public Service including departments and offices of the Legislature, provincial agencies, boards and commissions with employees, and public entities in the health and education sectors. The Act also applies to the board of a separate school district, the regional authority of a Francophone Education Region, charter schools, private schools that receive funding through the Education Grants Regulation, three subsidiary health corporations (Calgary Laboratory Services Ltd., CapitalCare Group Inc. and Carewest), Covenant Health and Lamont Health Care Centre.
For the purposes of the Act, wrongdoings include a contravention of a provincial or federal statute or regulation, an act or omission that creates a substantial and specific danger to the life, health or safety of individuals, or an act or omission that creates a substantial and specific danger to the environment. Other wrongdoings to which the Act apply include gross mismanagement of public funds or a public asset and knowingly directing or counselling an individual to commit a wrongdoing. The Act only applies to wrongdoings committed after the Act came into force on June 1, 2013.
The Act also creates the office of the Public Interest Commissioner. The Commissioner has broad powers to investigate complaints of reprisal or disclosures that he or she may receive and has the power to compel witnesses and inspect records.
Employers affected by the Act will be required to have in place procedures for disclosure that set out how the organization will receive and review information about wrongdoing. Organizations will need to designate an officer responsible for receiving complaints and enforcing the required procedures. The officer will also be charged with ensuring that the procedures are communicated to employees for which they are responsible. Until procedures are established by an employer, disclosures can be made to the Commissioner.
At a minimum, all disclosures made under the Act must be in writing and include the names of people involved in the wrongdoing and the dates of the alleged wrongdoing.
Employees who disclose wrongdoing or potential wrongdoing or who cooperate in an investigation related to a disclosure will be protected from actual or threatened reprisals under the Act. Examples of prohibited reprisals include dismissal, layoff, suspension, demotion, transfer, change of job location, reduction in wages, changes in hours of work, a reprimand, or any other measure that adversely affects the employee’s working conditions. If an employee feels he or she is the victim of a real or threatened reprisal, the Act provides a procedure for bringing a complaint to the Commissioner.
Along with reprisals, other actions such as making a false statement in a disclosure or investigation, wilfully obstructing the Commissioner or other individual performing their duty under the Act, and destroying, falsifying or concealing documents are considered offences under the Act. Penalties for committing an offence range from a fine of up to $25,000 for a first offence to a fine of up to $100,000 for each subsequent offence.
What does this mean for employers?
Organizations in the public sector affected by the Act will need to ensure that proper procedures for receiving and investigating disclosures are enacted promptly. The procedures implemented must also protect the identity of individuals involved in the disclosure process. Employers will need to designate an officer responsible for receiving disclosures and ensuring that complaints and disclosures are handled in accordance with the Act. The officer and the employer will need to ensure that all employees are aware of the procedures and their responsibilities in making a disclosure or complaint.
Employers will need to be diligent about protecting employees who disclose wrongdoing or participate in an investigation from reprisal. Caution should be exercised if any human resources decision affecting a person involved with a disclosure is contemplated as unjustified or poorly-documented decisions could leave the organization vulnerable to allegations of reprisal.