Canadian HR Reporter

CANADIAN HR REPORTER July 11, 2016 FEATURES 13 EMPLOYMENT LAW Blowing the whistle How does workplace snitching fit in with employment law? By Howard Levitt W histleblowing has never been bigger. "Dieselgate" — the scandal over Volkswagen's faked emission tests — severely tarnished that company's once green image and tanked its sales worldwide. Meanwhile, in a record year, the U.S. Securities & Exchange Com- mission has rewarded eight differ- ent whistleblowers with bounties totaling US$37 million. The essence of whistleblow- ing is that a worker discloses the employer's wrongdoing to the au- thorities. But how does snitching fit in with employment law? Employees owe a duty of loyalty to their employer. is legal duty is so fundamental to the relation- ship that it binds employees even if there is no policy or written contract. Whistleblowing laws create an important exception to that duty. In Regina, the Iron-Work- ers Union fired its office man- ager, Linda Merk, after she blew the whistle on alleged financial abuses by union officials. Merk then started a private prosecution, charging the union with illegal re- taliation under the Saskatchewan Labour Standards Act. In 2005, she finally won the union's con- viction at the Supreme Court of Canada. Although the duty of fidelity does not require employees to remain silent when faced with wrongdoing, the same duty re- quires them to "go up the ladder," reporting a problem internally before tipping off authorities or the media. e Supreme Court in Merk held that the balance be- tween an employee's duty of loy- alty and the public interest in sup- pressing unlawful activity is best achieved by encouraging employ- ees to resolve concerns internally before running to the police. is ensures their employer's reputa- tion is not damaged by unwar- ranted and potentially defamatory accusations. However, impropriety some- times makes it unreasonable to seek an internal remedy. Someone working at FIFA can't be expected to confront its president, Sepp Blatter, for example. In Canada, governmental workers typically have greater protection against retaliation for whistleblowing than those in the private sector. Federal govern- ment employees are sheltered by the Public Service Disclosure Pro- tection Act. Provincial legislation protects public sector whistle- blowers in several jurisdictions, including Ontario, Alberta and Nova Scotia. On Dec. 2, Quebec's legislature gave first reading to a similar statute, Bill 87, which the opposition criticized for failing to protect private sector employees. In most provinces, employees who report violations of certain statutes (such as Ontario's Oc- cupational Health & Safety Act) are specifically protected from reprisals. However, very few prov- inces — notably New Brunswick and Saskatchewan — give gen- eral protection to private sector whistleblowers. e one general source of pro- tection for all whistleblowing employees, nationwide, is the Criminal Code. Since 2004, it has made it a crime, punishable by up to five years' imprisonment, for an employer to retaliate against a worker who informs authorities of any law-breaking activity. is provision, however, has rarely been used because the criminal process is seen as an excessive and overly blunt instrument to deal with workplace exigencies. Tattletales don't qualify as whis- tleblowers if the alleged wrongdo- ing is essentially directed towards that employee personally. ere must be a significant public inter- est dimension. In 2009, the On- tario Court of Appeal held that Nico Van Duyvenbode wasn't acting as a whistleblower when he began a letter-writing campaign complaining that his employer, the Public Service of Canada, was treating him unfairly. Publicizing your own personal workplace is- sues, as opposed to institutional wrongdoing, just doesn't count. Being recognized as a legiti- mate whistleblower can be very valuable to a protected worker. It recently helped get Ted Coo- per reinstated with 28 months' back pay. In May 2013, Cooper, a unionized professional engineer employed by the City of Ottawa, was fired for insubordination after sending an email to his supervisor demanding information about a project and threatening to involve the auditor general. His union grieved the dismissal, seeking reinstatement. In Septem- ber 2015, the arbitrator, Deborah Leighton, found that "the email was unprofessional and showed bad judgment." Despite this, she concluded the appropriate disci- pline was merely a five-day sus- pension rather than termination. Cooper's history as a whistle- blower tipped the scales, saving him from being found insubor- dinate. For years, he had waged a one-man campaign to alert authorities about grave errors in calculations that risked dangerous flooding in new developments in Kanata, Ont. Cooper's efforts had been vindicated in 2008 when then-mayor Larry O'Brien pub- licly commended his persistence. Perceived errors in later studies had sent Cooper back into battle. Mindful of that background, Leighton wrote: "I am convinced that the email was well-motivated in spite of its tone. …(F)or years, he has worked on his own time to ensure that project is safe for the public. Moreover, he believed that he had a duty as a professional en- gineer to raise concerns". Looking ahead to 2016, the Ontario Securities Commission is planning to set up a version of the Security and Exchange Com- mission's whistleblower reward system. ere is nothing like the smile of a newly minted million- aire, especially one brimming with self-righteousness. To avoid being the source of those funds, employers should enact policies that clearly delin- eate an internal grievance pro- cess employees must follow if they suspect impropriety at any level of the organization, with effective recourse. is should be coupled with rigorous confidentiality ob- ligations. That may not totally protect someone — but it will go a very long way. Howard Levitt is senior partner at the law firm Levitt in Toronto. He can be reached at (514) 594-3900 or hlevitt@ levittllp.com. Credit: Lightspring (Shutterstock) Governmental workers typically have greater protection against retaliation for whistleblowing than those in the private sector.

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