Whistleblower laws exist to protect employees who disclose wrongdoing within their organizations. This legislation prohibits an employer from taking any reprisal, such as discipline or termination, against an employee who blows the whistle on employer misconduct, wherever whistleblower legislation is in force.
Whistleblower legislation in Canada is more prevalent in the public sector, where employees in Ontario, Alberta, Manitoba, New Brunswick, Saskatchewan, and the federal public service are protected. In the private sector, only employees in Saskatchewan and New Brunswick are protected under those provinces’ employment statutes. In addition to specific whistleblower laws, provincial occupational health and safety laws provide employees with whistleblower protection with respect to disclosing dangerous working conditions and safety concerns (for example, section 50 of the Ontario Occupational Health and Safety Act (OHSA)). The Criminal Code also provides protection for employees, as section 425.1 makes it a criminal offence for employers to take reprisal against employees who provide information to law enforcement officials about their employer’s criminal activity.
Although whistleblower laws protect employees from reprisal, a recent decision by the Ontario Labour Relations Board (OLRB) suggests that there is a “right way to blow the whistle.” In Kalac v Corrosion Service Ltd, the employee was a professional engineer employed in a managerial position with the company. A few months into his employment, he began sending aggressive e-mails to senior management identifying gaps in the company’s safety procedures and training. The company held meetings to try and address the employee’s concerns, but he was dissatisfied with the company’s response and the threatening e-mails and aggressive interactions with management continued. The employee was terminated and brought a reprisal application to the OLRB under the OHSA. In upholding the employee’s termination and dismissing the complaint, the OLRB recognized the importance of whistleblower protection, but the adjudicator identified limits: “employees must have the right to act forcefully to ensure health and safety is not compromised. That being said, the normal workplace rules regarding decorum and respectfulness apply.” The OLRB was convinced on the evidence that: “…the company terminated the applicant’s employment because he acted in a disrespectful and threatening manner to other members of management and for no other reason.”
The OLRB upheld the employee’s termination, despite the fact that the employee’s misconduct arose out of statements made to the employer regarding safety concerns, which would generally be protected under the “no reprisal” rule, under section 50 of the OHSA. Despite this decision, the force of section 50 of the OHSA remains important. Where an employee alleges that the employer took reprisal against the employee for disclosing workplace health and safety issues, the onus is on the employer to demonstrate that no part of its decision to impose discipline was tainted by the employee’s exercise of his or her rights under the OHSA. However, the decision in Kalac demonstrates that there are limits to the whistleblower protection, and the whistleblower laws will not shield an employee from discipline when the employee’s behaviour is aggressive, abusive and threatening.