This is the first in a series of blogs that I will be writing on workplace whistleblowing. There is not a lot of practical information available on the topic and I want to help shed some light on how employers can be better prepared to deal with employees who blow the whistle.
I am somewhat of an anomaly in that I have a lot of hands-on experience with this subject matter. I have managed whistleblowing programs, conducted intake interviews with whistleblowers and investigated alleged wrongdoing disclosed by whistleblowers.
For this blog, I thought that a good place to start would be to provide general information about workplace whistleblowing given that it is a topic that is foreign to many.
What is a workplace whistleblower?
Excellent question. The truth is that it is a difficult one to answer because there is no widely-accepted definition of the term “whistleblower.”
At its most basic, I like to think about the workplace whistleblower as an employee who discloses a perceived wrongdoing relating to their employer, either internally or externally.
Is there a whistleblowing law in Canada?
There are many, actually. However, there is not one all-encompassing law that deals with whistleblowing in the workplace. What we do have are different laws that apply to specific individuals and subject matters.
For example, there are provincial and federal whistleblowing laws that apply to public servants. These laws allow certain public servants to disclose wrongdoing to designated persons and provide protections from reprisal for those who come forward with information. The nature of the wrongdoing that can be disclosed is set out in legislation and can include, for example, an alleged contravention of a law or “gross mismanagement” in the work of the public service.
I am not aware of equivalent legislation for private sector employees. There are provisions in some laws that provide protection for employees who come forward with information, but these tend to be narrow (the disclosure has to be about a very specific type of wrongdoing). An example of this is section 425.1 of the Criminal Code which prohibits an employer from retaliating against an employee who has disclosed information about an offence (under the Criminal Code or otherwise) to a person whose duties include the enforcement of federal or provincial law. The provision does not provide protection, for example, for disclosures that are made internally to the employer.
What about whistleblowing policies?
Some employers have their own internal whistleblowing “laws” which they implement by creating a policy. Such a policy gives employees an internal avenue to disclose perceived wrongdoing and can be effective, if properly drafted and communicated to employees, to ensure that employees report wrongdoing internally, rather than doing so externally or publicly.
Does it matter whether there is a whistleblowing law or policy?
To an employee, it may. This is because whistleblowing laws and policies generally provide employees with protections from reprisal. The protections can vary but generally, they prohibit employers from retaliating against an employee who blew the whistle; for example, by demoting, suspending or terminating an employee for disclosing a wrongdoing. (I note that similar protections may also be included in non-whistleblowing policies or laws for employees who assert certain complaint rights; for example, the right to make a human rights complaint under the Ontario Human Rights Code.)
Some whistleblowing laws and policies also require that the identity of the whistleblower be kept confidential, to the extent possible. Based on my experience, this protection is the backbone of any good whistleblowing program as employees rely on the assurance of confidentiality in deciding whether to come forward.
What can a whistleblower disclose?
Anything they want, really. However, whistleblowing laws and policies generally define what types of matters can be disclosed and to whom. Some examples of matters that can be disclosed:
- criminal activity
- financial irregularities
- health and safety issues
- conflicts of interests and other ethical matters
- environmental matters
Generally, a matter that relates to an employee’s employment relationship with the employer does not fall within the realm of whistleblowing. This is usually because there are other avenues to deal with such matters.
Are whistleblowers anonymous?
Not always. There are whistleblowers who identify themselves while others send information in a brown envelope (yes, that actually happens). Others may use a fictitious email account to keep the lines of communication open with the person to whom they have reported the wrongdoing; it really depends on what the whistleblower is comfortable with. I have even met with whistleblowers face to face or spoken to them on the phone without ever knowing who they were.
Can a whistleblower be compensated for blowing the whistle?
Rarely, yes. The Ontario Securities Commission has a whistleblowing program that allows, when certain criteria are met, for money to be paid (potentially in the millions!) to those who have disclosed information relating to contraventions of securities law.