Sunday, February 26, 2006

Whistleblowing Resources

This is a follow-up to the February 18 post entitled Public Servant Codes of Ethics Worldwide.

Many of these codes provide for mechanisms for the reporting of incidents of wrongdoing (illegal acts or immoral and illegitimate ones), otherwise known as "whistleblowing".

General background:
  • Whistleblowing Study - Models of Whistleblower Protection (Competition Bureau, 1997): discusses how whistleblowing has been defined, some of the legislative reforms that have been adopted or proposed to protect whistleblowers, and the different approaches that have been used -- both in Canada and other jurisdictions -- to encourage whistleblowers to come forward with information and to protect them from reprisals
  • Internal Disclosure of Information Concerning Wrongdoing in the Workplace (Public Service Human Resources Management Agency of Canada): "The objective of the policy on internal disclosure is to allow public service employees to bring forward information in good faith concerning wrongdoing, and to ensure that they are treated fairly and are protected from reprisal when they do so. Wrongdoing is defined as an act or omission concerning: (a) A violation of any law or regulation; or(b) A breach of the Values and Ethics Code for the Public Service; or(c) Misuse of public funds or assets; or(d) Gross mismanagement; or(e) A substantial and specific danger to the life, health and safety of Canadians or the environment."
  • Report of the Working Group on the Disclosure of Wrongdoing: the Working Group was formed in 2003 by Treasury Board to examine whistleblowing in the federal public sector. The Group was chaired by Kenneth Kemaghan, public administration professor at Brock University, and included people such as Edward Keyserlingk, federal Public Service Integrity officer, former Auditor General Denis Desautels and others. It had a very ambitious mandate: to examine the experience with whistleblower legislation elsewhere, examine experiences with the Policy on the Internal Disclosure of Information Concerning Wrongdoing in the Workplace, examine the Values and Ethics Code for the Public Service and consider the "degree to which it or similar approaches represent a positive means for supporting ethical government", propose "possible alternative legislative approaches, including issues related to resolution and disclosure such as who is covered, what may be disclosed, who may disclose, to whom, how are those making disclosures protected, how are those 'accused' treated fairly, what procedures for investigation, what office and powers to administer/enforce, reporting to whom?". The Working Group report provided a list of selected reference materials.

Federal legislation:

  • Public Servants Disclosure Protection Act (S.C. 2005, c.46, royal assent November 25, 2005, still awaiting proclamation into force): one of the results from the Working Group report was the introduction of new legislation that requires each chief executive responsible for a department or agency in the federal public sector to establish an internal disclosure mechanism, including the appointment of a senior officer to receive and act on wrongdoing disclosures; the Act also creates a neutral third party, the Public Sector Integrity Commissioner to receive disclosures and investigate them. The Commissioner is an office who reports to Parliament, not the government. [N.B. while welcoming the progress that the new legislation represents, government accountability watchdog group Democracy Watch has criticized what it sees as 7 flaws in the Act)
  • An Act to amend the Criminal Code (capital markets fraud and evidence-gathering): the federal government since 2004 protects private sector whistleblowers who report unlawful conduct such as insider trading, corruption and market fraud within their corporation. The legislation does this by creating a new offence to deter employment-related intimidation.
  • Canadian Environmental Protection Act, S.C. 1999, c. 33: it contains a whistleblowing provision - s. 16(4) declares that "no employer shall dismiss, suspend, demote, discipline, harass or otherwise disadvantage an employee, or deny an employee a benefit of employment" for reporting violations of the Act.
  • Canada Labour Code, R.S.C. 1985, c. L-2: s. 256. (1) (c) protects any employee under federal jurisdiction from being discharged, threatened or discriminated against for testifying, giving information to an inspector, or seeking enforcement of the Code
  • Canadian Human Rights Act, R.S.C. 1985, c. H-6: it prohibits any person from threatening, intimidating, or discriminating against an individual because that individual has made a complaint, given evidence, or assisted in the initiation or prosecution of a complaint under the Act.
Provincial legislation:

  • Employment Standards Act (New Brunswick): New Brunswick is one of the only provinces to completely and clearly protect employees via a statute. s. 28 of the Act declares that "an employer shall not dismiss, suspend, lay off, penalize, discipline or discriminate against an employee if the reason therefore is related in any way to (a) the application by an employee for any leave to which the employee is entitled under this Act; (b) the making of a complaint or the giving of information or evidence by the employee against the employer with respect to any matter covered by this Act; or (c) the giving of information or evidence by the employee against the employer with respect to the alleged violation of any Provincial or federal Act or regulation by the employer while carrying on the employer’s business; or if the dismissal, suspension, layoff, penalty, discipline or discrimination constitutes in any way an attempt by the employer to evade any responsibility imposed upon him under this Act or any other Provincial or federal Act or regulation or to prevent or inhibit an employee from taking advantage of any right or benefit granted to him under this Act"
  • Environmental Protection Act (Ontario): Ontario provides some protection to whistleblowers in environmental protection and health and safety cases. As well, under the Environmental Bill of Rights, S.O. 1993, c. 28, s. 105, there are protections for employees who have been discharged, disciplined or harassed for complying with Ontario's environmental legislation. Under both statutes, employees who have had reprisals taken against them are authorized to file a complaint with the Ontario Labour Relations Board.
  • Occupational Health and Safety Act (Ontario - R.S.O. 1990, c. O.1): under s. 50(1), the Act prohibits employers from taking reprisals against a worker because the worker has complied with the Act, sought its enforcement, or given evidence in a proceeding brought under the Act
  • Public Service Act (Ontario, R.S.O. 1990, CHAPTER P.47, part IV): not yet proclaimed into force. The Act would protect public sector employees who disclose wrongdoing defined as an action that "(a) contravenes a statute or regulation; (b) it represents gross mismanagement; (c) it causes a gross waste of money; (d) it represents an abuse of authority; or (e) it poses a grave health or safety hazard to any person or a grave environmental hazard"
  • Whistleblower Protection Act (Saskatchewan): a private member's bill from the spring of 2004 but it has not been passed
  • Manitoba is introducing legislation that promises to protect whistleblowers in the civil service as well as Crown corporations and public sector agencies like the Workers Compensation Board. Currently, Manitoba provides whistleblower protection in certain legislation for areas such as child services, workplace health and safety, health care and drinking water

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posted by Michel-Adrien at 3:08 pm

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