Canadians for Accountability - About Whistleblowing

About Whistleblowing

"There is no law, no system, no set of regulations which can more effectively hold governments to account than the conscience of man. Opposition parties, the public and the press rely on individuals, not systems, to tell us what those who rule over us would like us not to know. We call them "whistleblowers" because, like referees, they seek to keep the players in our political system in check."
	Editorial in The Independent of London, on the arrest of Tory M.P. Damian Green for suspicion of leaking documents November 29, 2008

Accountability: What It Is
Whistleblowing: A Definition
Who is a Whistleblower
Who isn't a Whistleblower
The Whistleblower's Experience
The Impact on Whistleblowers
Whistleblowing Law in Canada
Civil Lawsuits

Accountability: What It Is

Accountability refers to duties and responsibilities and answering for the performance of those duties and responsibilities. In the ideal, managers of a corporation are accountable to the board who are accountable to shareholders. In democratic government, bureaucrats are accountable to elected officials who are accountable to voters.

Accountability is to people with a legitimate interest and is about controlling conduct and preventing mismanagement and misconduct.

Frequently, accountability is a two-way relationship. Again in the ideal:

most managers have a responsibility to their employees to ensure that they work in an environment and with tools which enable then to do their jobs efficiently, and to provide honest and constructive performance appraisals
employees are responsible for ensuring the work is done properly and in a timely manner, and for improving their performance when required

Similarly, employees should not have to:

work in an environment which is dangerous
perform acts which are unethical or illegal
observe the unethical or illegal behaviour of others.

Nor should they, through their actions, endanger others or allow problems to go unaddressed. For example, if fraud is occurring in a corporation, the board of directors and the shareholders have a right to know.

Accountability also implies that there are mechanisms by which the performance of responsibilities can be reported, heard and acted upon in a constructive manner. Shortcomings must be able to be addressed by remedial action or penalties.

Thus, where there are no mechanisms to report on the performance of duties and responsibilities or no means to address poor conduct, mismanagement or misconduct, no accountability can be said to exist.

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Whistleblowing: A Definition

Whistleblowing was defined in 1972 by Ralph Nader as "an act of a man or a woman who, believing in the public interest overrides the interest of the organization he serves, publicly blows the whistle if the organization is involved in corrupt, illegal, fraudulent or harmful activity."

The definition has undergone some debate since then, but whistleblowing is now generally accepted an act by a person or group to disclose to authorities or to the public acts of significant wrongdoing. The wrongdoing may relate to a violation of the law, unethical activities, health and safety violations or other matters which pose a risk or danger to public health, safety or interests.

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Who is a Whistleblower?

In the broadest possible terms, any person who exposes or reports wrongdoing is a whistleblower. For example, an employee of a company who reports fraud - whether to his supervisor or to the police - is a whistleblower. Similarly, a bureaucrat who reports mismanagement to the press is also a whistleblower.

Some definitions have required that reprisal take place for a person to be considered a whistleblower. This is not the position of Canadians for Accountability. It is obviously preferred that the individual suffer no retaliation, but whether or not this happens cannot be known to the whistleblower before he or she makes the decision to speak out. Thus, it is reasonable that those who do not suffer reprisals be as honoured for their courage as those who do.

Much has been said and written about the motives of whistleblowers. For example, it is typical for whistleblowers to be characterized by management as disgruntled individuals may have fabricated elements of their disclosure. Others view whistleblowers as moral paragons. While truth depends on the individual, it should be understood that whistleblowers are not perfect individuals, and that motive should have little bearing on whether a person is considered a whistleblower. A malicious whistleblower may be just as right as an impartial one. Indeed, as motive is subjective - and likely to be interpreted differently by opposing parties - the most important factors should be the truth and relevance of the information in the disclosure.

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Who isn't a Whistleblower?

There has also been some confusion about the other side of the equation - the person who isn't a whistleblower. There are many kinds of wrongdoing, but some have a more personal dimension. A person usually isn't a whistleblower:

if the matter being reported pertains to a personal or personnel issue, such as workplace bullying or harassment,
if the matter being reported pertains to a dispute between the person and the organization, such as holiday or severance pay,
if the matter being reported pertains to simple mismanagement, such as inappropriate work assignments or poor supervision leading to hardship (as opposed to gross mismanagement, which creates risks to either the organization or the public), or

Though the line can be a fine one, the first three items are usually addressed through labour-management dispute resolution mechanisms (such as grievances) or civil litigation and generally lack the public interest dimension which characterizes most, if not all, whistleblowing issues.

This is not to say that these matters cannot evolve into the broader public interest issues if not addressed - such as when chronic mismanagement deteriorates to the point where a safety risk is introduced into the equation, or when financial disputes reveal broader patterns of fraud.

In addition, most whistleblowers are not saints - some desire for consequences to wrongdoers is normal. But, generally speaking, true whistleblowers are motivated by a desire to cause change. If there is a penalty to wrongdoers, that is secondary.

It should also be noted that workplace bullying and harassment are frequently present in organizations in which wrongdoing is taking place. In such an instance, it is important to separate the symptom from the disease.

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The Whistleblower Experience

The act of whistleblowing is one which requires courage, as repercussions are long-lasting. Unethical organizations and individuals that perceive themselves to be under threat by whistleblowers may isolate the whistleblower and attempt a series of reprisals. These can include:

Workplace bullying
Ostracizing
Removal of work responsibilities or authority
Loss of promotion opportunities
Manufactured poor performance reports
Demotion
Threats
Suspension
Firing or constructive dismissal
Blacklisting

Action may also be taken against a spouse or children.

Efforts are usually made by those implicated in the whistleblowing to mitigate the damage. These actions can include

Flawed and non-independent inquiries
Attempts to characterize the whistleblower as
- a liar, unreasonable or unstable
- not in a position to know all the facts
Destruction of evidence
Creation of false or post-dated documents
Collusion with other implicated individuals
Intimidation of other employees to prevent further whistleblowing

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The Impact on Whistleblowers

The effects of these retaliatory actions on whistleblowers themselves are varied as the individual whistleblowers. They may include:

Deterioration in health
Depression
Loss of career progression
Loss of income
Marital stress, up to and including divorce
Suicide

The battle the whistleblower faces may take many years to resolve, so exhaustion is also common. While those persecuting whistleblowers may be able to push levers to set wheels in motion, whistleblowers themselves are usually isolated. This is exploited by those in authority to force unfair settlements or wear whistleblowers down until they cease to be a threat.

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Whistleblowing Law in Canada

Canada has very few laws which pertain directly to whistleblowing. The federal government enacted the Public Servants Disclosure Protection Act in 2007. The intent of this act is to protect most of the federal public service from reprisals for reporting wrongdoing. However, this Act has been extensively criticized as setting too many conditions on whistleblowers and for protecting wrongdoers. For a thorough critique of the Act, visit the web site of the Federal Accountability Initiative for Reform (FAIR).

Several provinces also have legislation which protects whistleblowers to an extent:

Section 28 of the New Brunswick Employment Standards Act, Chap. E-7.2, provides specific protection for those reporting wrongdoing.
In Ontario, the Environmental Protection Act, R.S.O. 1990, c. E.19 and the Environmental Bill of Rights, S.O. 1993, c. 28 provide protection.
Saskatchewan's Labour Standards Act provides protection, although the reporting must have been done to a lawful authority.

A number of other acts provide narrow protections to individuals reporting wrongdoing under those acts.

For the most part, however, whistleblowers in Canada are unprotected by statute. This is a shameful state of affairs, as we in Canadians for Accountability believe there should be protection in law for all whistleblowers - in industry, government or the private sector - with strong penalties for those that retaliate against whistleblowers.

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Civil Lawsuits

Statutes are not the only redress, however. Case law has established that, notwithstanding collective agreements and internal mechanisms for redress, employees who are reporting wrongdoing (i.e. whistleblowers) may seek remedy in the courts if they are the victims of reprisal.

This may be true even in the case of federal government employees, despite the fact that s. 236 of the Public Service Labour Relations Act (PSLRA)makes a specific restriction on "any right of action" outside the grievance process, although this has yet to be tested in court.

This was tested, however, in February 2009, when a motion to dismiss the case of federal government employee and whistleblower Ian Bron was heard in Ontario Superior Court. Justice Forget chose to accept the arguments of the government that s. 236 of the PSLRA makes legal action impossible.

It is the opinion of Canadians for Accountability that the decision is seriously flawed and does not consider the severity of the reprisals that whistleblowers face. In these reprisals, normal grievance mechanisms are usually subverted in order to punish the whistleblower. The aim is to mobilize the entire organization to destroy the offending individual. In addition, whistleblowing - unlike garden-variety labour issues - usually deals with matters of public interest and safety.

Thus, if this decision is allowed to stand it will be a significant step backward for whistleblower rights and will make whistleblowing in the federal government impossible. It will also have effects for whistleblowers in other jurisdictions. Accordingly, Mr. Bron has appealed the decision.