Whistleblowing is the act of exposing an employer’s wrongdoing to the proper legal authorities. At its core, employees have a duty of loyalty to their employer.
Whistleblower legislation creates an exemption to this duty.
In Canada, some government workers are provided with protection against retaliation for whistleblowing. Since 2007, federal public servants have been protected by federal whistleblower laws. The goal of such legislation is to establish a code of conduct that provides protections for whistleblowers including disciplinary actions against a public servant who takes a reprisal against a whistleblower. In addition, a number of provinces across Canada have enacted whistleblower legislation. In sum, the goal of the legislation in the various provinces and at the federal level is to protect public sector employees from job reprisal, such as termination, if they report wrongdoing.
Some provinces have considered establishing an independent ombudsman to receive all complaints, whereas other provinces have noted that an employee who wishes to make a disclosure, is to report such wrongdoing to his or her supervisor and/or the ombudsman. A disclosure must be in writing and contain certain information.
Such legislation has been enacted because, unfortunately, it has been common for whistleblowers to experience demotion, dismissal and otherwise to receive negative treatment from their employers after they disclose any wrongdoings or corruption. Not only has the federal government and some provincial governments taken some steps to try to address this issue, some private sector employers, in particular larger ones, have created codes of ethics to ensure that the company’s directors, officers and employees adhere to certain standards of conduct.
Some commentators have commented that the current versions of whistleblower legislation greatly focuses on procedures for handling allegations of wrongdoing, rather than on protection for the whistleblowers themselves. One often cited shortcoming of, in particular the federal legislation, is that the onus is on the whistleblower to prove that adverse actions were intended by the employer as reprisals – which is an almost impossible task. Others have suggested that the best practice would be to reverse this onus by requiring the employer to prove that adverse actions against the whistleblower were not reprisals.
To date, legislators continue to struggle with trying to balance the competing rights and interests of themselves as an employer and with the public servants as employees. The concern, of course, is to not to have so many protections within the legislation such that employees are given essentially a “free pass” to criticize their employers, without justification, without any ramifications.
To be effective, whistleblower legislation must provide for an effective and transparent process of communicating legitimate wrong doings.
The legislation should address confidentiality and afford appropriate protection to whistleblowers as well as provide a process for handling job reprisal.
If you have questions about whistleblowing laws and issues in Prince Edward Island, please contact us at Key Murray Law.
Legal information appearing in this article and elsewhere on Key Murray Law’s website is intended for informational purposes only and is not intended to substitute for or replace any legal or other professional advice. If you have specific concerns or a situation in which you require legal advice, you should consult directly with one of our lawyers.