As a typical whistleblower, you might be an ordinary employee who, during your duties, discovered something inappropriate or fraudulent in your employer’s accounting or business practices and decided to bring these wrongdoings to a manager’s attention. The trouble is, even if you acted out of altruistic intentions and good faith, some employers may not like you sticking your nose where it does not belong. You may unknowingly walk into a hailstorm of recrimination that could leave you castigated as a non-conformer or stool pigeon. At worse, your employer could summarily dismiss you for insubordination, perhaps even without compensation. So, what should you do when you see something seriously awry at your workplace?
U.S. Politics and Whistleblowers
One can simply look to our south to appreciate how risky whistleblowing remains for employees. Several years ago, Barack Obama was forced to deal with whistleblower, Edward Snowden who exposed global surveillance programs run by the NSA. They infringed on personal privacy and in no time, these revelations sparked global outrage about the iniquitous reach of U.S. government power. Yet, despite widespread support for Snowden, Obama charged him under the Espionage Act. This forced Snowden to flee into exile to Russia because he risked a trial and likely 20-year imprisonment term.
More recently, an unnamed person has given Donald Trump similar reasons for concern. This time, with an impeachment process underway against the U.S. president, that whistleblower reportedly remains under the protection of a security detail.
Fortunately, the Canadian legal system, established over the last 60 years, provides a more progressive and fair- minded regime for employees. Above all, and contrary to the labour environment in the U.S., our laws forbid “at-will” terminations.
Whistleblower Laws In Canada
Canadian government employees generally receive far greater protection against retaliation for whistleblowing, compared to those in the private sector. The Public Service Disclosure Protection Act shelters them, as do equivalent provincial legislation for Ontario public sector workers.
For private sector workers, the Supreme Court of Canada has long held that your employer must treat you with utmost honesty and respect during terminations. They must disclose the true reason for your dismissal without trumping up the cause.
If your employer fires you for insubordination because of your revelations, they may not find it simple to prove. The law puts the onus squarely on them to demonstrate, beyond doubt, that you explicitly refused a legal instruction or that your misconduct was willfully malicious and serious enough to harm the their interests.
Termination Without Cause
In the absence of a clear cause for dismissal however, your employer could still terminate your employment. But they must provide you with notice, or compensation in lieu of notice. In this event, do not sign anything until you have received legal advice.
First of all, your termination package should be commensurate with your circumstances. And if you advance evidence that your termination was directly caused by your disclosures, the law gives Canadian judges the power to call your employer out for immoral or bad-faith conduct, warranting additional compensation.
Furthermore, the law specifically protects you from reprisal by discipline, demotion or termination if you prove your employer violated the Employment Standards Act, the Workplace Safety and Insurance Act or any Human Rights legislation. In such instances, judges will penalize your employer and require them to post an apology and/or declaration that they will not repeat the violation. They will also demand your employer reinstate you to your pre-reprisal position.
In 1982, Neil Fraser, a Revenue Canada employee, publicly criticized the federal government’s policies on the mandatory roll out of the metric system. This was a major topic of national debate at the time. Mr. Fraser linked it to the Canadian Charter of Rights and Freedoms, decrying “Your freedom to measure is a measure of your freedom.” His employer warned him to stop, but he did not, resulting in two suspensions. Eventually they dismissed him. Mr. Fraser appealed these actions.
Consequently, the judge determined that his first suspension was unjustified. While public servants should exercise restraint when making public statements related to their direct duties, they remain free, like private citizens, to criticize government policies unrelated to their work. Stymieing this right would hinder whistleblower attempts to inform the public about inappropriate conduct within the public service.
However, the judge upheld the second suspension and dismissal because of Mr. Fraser’s escalation of public criticism even after his employer offered to expedite the grievance procedure.
Firing Tainted by Whistleblower Complaint
In 2014, Maninderpal Randhawa was fired from her job at the Bank of Nova Scotia for dishonesty. A risk assessment audit revealed, with video evidence, that she failed to comply with bank policies. However, Ms. Randhawa suggested her firing constituted retaliation. Shortly before her termination, Ms. Randhawa had filed a complaint against her supervisor through the bank’s internal whistleblower hotline. Subsequently, the adjudicator found the termination “tainted” and raised the bar on the employer’s case.
He ruled that while honesty and trust remain very important qualities for employees in the banking industry, Ms. Randhawa’s breaches did not cause actual harm to the bank. And they were not severe enough to strike at the heart of the employment relationship. Furthermore, the bank had numerous other instruments at its disposal to discipline Ms. Randhawa, like suspension, demotion or retraining. He ordered the bank to reinstate Ms. Randhawa with back pay. By this time 3 years had passed since her termination, landing Ms. Randhawa a very tidy sum of money for her grievance.
Whistleblower protection, however, will not shield you from any frivolous grievance against your employer. In 2009, Nico Van Duyvenbode was a senior legislative government advisor. He began a letter-writing campaign complaining that his employer, the Public Service of Canada, was treating him unfairly. His employer used his letters as grounds for dismissal for gross insubordination.
Mr. Van Duyvenbode claimed his firing was unjustified because his letters constituted whistleblowing. However, the judge found they had no relevance to public interest or institutional wrongdoing. Rather they portrayed Mr. Van Duyvenbode’s penchant for office politics and gossip; they offered him an avenue to air his personal grievances against coworkers. He denied whistleblower protection to this matter, upholding the dismissal.
Whistleblowers Proceed with Caution
This case portrays the importance of exerting caution rather than going out on a limb and having it sawed off behind you. The law does not guarantee protection from a regressive discipline to all whistleblowers.
Successful whistleblowers are generally honest brokers of damaging information related to safety, human rights abuses and even financial indiscretions at the workplace. They usually have no other agenda but to correct dysfunctional behavior which could ultimately be detrimental to their employer.
To work within the system, you will require strong legal support as a backup to ensure you do not risk your safety, financial well being and employment security. If you see something and feel compelled to speak up, then contact us first. Lecker & Associates primarily represent employees and have successfully litigated sensitive whistleblower cases for over 30 years. Let us ensure you are on solid legal ground before you move forward with your concerns. At the least, we can determine if your information has enough character to constitute a case worthy of whistleblower protection.
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