The following is my oral submission on February 4 to the Resource Stewardship Committee which is currently reviewing Alberta’s Public Interest Disclosure (Whistleblower Protection) Act:
In my short time today, I would like to focus on measures that will create the trust needed for employees to come forward to report wrongdoing knowing that their jobs will be protected. This is the only way to make this legislation work effectively.
All of us here today, regardless of affiliation, share the values embodied in whistleblower protection. Wasted government resources, corruption, shocking newspaper headlines are not what anyone wants to see. This undermines both proper governance and public confidence in government. Effective whistleblower legislation creates confidence when the public sees that a system is in place to uncover and deal with bad actors.
According to annual reports on the Public Interest Commissioner website ending in March 2020, there have been 215 disclosures since the Act’s inception. Only 3 cases have reached the level of wrongdoing as that term is defined in the Act. One can not help but infer from this measly figure that employees do not have the necessary trust in this system to come forward to report wrongdoing.
Any view that does not appreciate that whistleblowers are reluctant to come forward to report wrongdoing for the obvious reason that they put their livelihood on the line misses the point. Whistleblowing is bargain that says to the employee that, if you want me to report wrongdoing, then you must cover my back!
In the time I have left, I offer 4 suggestions for improvement that builds on the existing legislation and will help improve employee confidence in the system.
1. “No Loopholes” Protection for Whistleblowing Employees
The Commissioner has clarified that, notwithstanding how the Act is written, eligibility for protection against reprisal is not tied to actual findings of wrongdoing by her office. However, protection is currently denied when an employee reports wrongdoing to the wrong person, fails to put the disclosure in writing or, as one case noted, fails to reference the legislation. These look like “gotcha” technicalities that do not serve any purpose other than to deny eligibility for reprisal protection under the Act.
It is imperative that Alberta’s legislation adopt a “no loopholes approach”, meaning whistleblowing employees are automatically given protection when they report wrongdoing in the workplace, regardless of which superior they report it to, whether it is in writing, or whether it references the Act. Moreover, employees who refuse to participate in a wrongdoing should also be covered.
The committee should also consider a provision, found in the federal act, that permits disclosures directly to the press and public in urgent circumstances where there is not time to conduct an investigation to remedy the wrongdoing.
2. Improved Rigour and Transparency of Reprisal Investigations
I notice on its website that the Commissioner claims that over 1400 employees have been protected since 2013. I am assuming this means that by maintaining the anonymity of public servants who contact her office, that the Commissioner believes they are protected.
Commissioner confidentiality, on its own, is inadequate protection. Employers often know the whistleblowing employee because the complaint is made internally. All studies show that whistleblowers almost always report internally before going outside the organization. Or for those reporting to the Commissioner directly, employers may guess the whistleblowing employee, correctly or not, based on who had access to incriminating information, or through mere suspicion.
Reprisal, when it happens, does not take the form of immediate punishment or dismissal. Rather, it is done surreptitiously through such things as inappropriately difficult or onerous job assignments and inaccurate performance reviews, and takes place over a number of months or years. In other words, the employer builds a case against the employee setting the stage for dismissal or some other form of disguised reprisal.
It is not clear how rigorous current reprisal investigations are. The Act tells us that investigations are to be “informal” but what is needed is properly trained investigators who aggressively turn over every stone looking for evidence of a disguised reprisal. Any hint of collaboration or informality with an employer would, and should, rightly scare off a whistleblower.
The Act as drafted requires the PIC to investigate allegations of reprisals. Yet to date not a single finding of reprisal has been made, in at least 52 complaints of reprisal by employees. There have been only two reports that have explained, to some extent, the process of the reprisal investigation. Neither of these reports, nor the PIC website, assure employees that the Public Interest Commissioner is either alive to, or dedicated to uncovering, disguised reprisals.
3. Right of Appeal to the Alberta Labour Relations Board Against a Negative Reprisal Finding
Currently, the Act mandates that any finding of reprisal by the Commissioner’s office should be referred to the Alberta Labor Relations Board to determine an appropriate remedy. Because there has never been a finding of reprisal, this mechanism has never been used. I suggest that the role of the Labour Relations Board be expanded.
An employee against whom there is a negative finding of reprisal by the Commissioner’s office should have a right of appeal to either the Labour Relations Board or the Court of Queens Bench. Whatever the adjudicative process, there should be a presumption that dismissal or reprisal is the result of whistleblowing, leaving it to the employer to prove that it is not (i.e. a reverse onus). There should also be a limited waiver of confidential communications between an employer and its legal counsel to the extent relevant to the hearing.
4. The Need for a Survey to Gauge Public Servant Confidence in the System
During legislative reviews, it would be helpful for this Committee to have performance evaluations of how the legislation is working to meet its goals. I would recommend that current public servant surveys in the Alberta government include questions that gauge public servant perceptions of the Act and its administration. This would be a relatively easy way to help illuminate where work needs to be done to increase employee confidence in the system.