Implementation of an effective whistleblower policy is of increasing importance for Canadian companies and small businesses. Having a policy that allows employees the freedom to report wrongdoing without the fear of retaliation promotes a transparent workplace. Employees are likely to feel more respected and protected if they know their employer makes their safety and security a priority.
Is a whistleblower policy mandatory? A whistleblower policy is not mandatory per se for Canadian organizations and businesses. However, practically, such a policy can assist an employer in limiting exposure to retaliation for complaints being made and issues being raised. If a dispute arises where it is alleged an employee was retaliated against for bringing a whistleblower complaint, an employer can assist their defence by pointing to the existence of and adherence to a policy. A whistleblower policy ensures all stakeholders in an organization are aware that misconduct is treated seriously. It signifies that the company is committed to a culture of accountability and will promptly investigate wrongdoing.
For Alberta companies and organizations, there is various Canadian legislation covering whistleblowers, including:
- The Criminal Code, RSC 1985, c. C-46, s. 425.1 makes it a criminal offence for an employer, or anyone acting on behalf of an employer, to take or threaten disciplinary action against an employee with the intent to prevent the employee from disclosing a contravention of a federal or provincial law to law enforcement. This section also makes it an offence to retaliate against an employee for disclosing such information.
- The Public Servants Disclosure Protection Act, SC 2005, c. 46 applies to federal public service employees and prevents retaliation against a whistleblower.
- The Public Interest Disclosure (Whistleblower Protection) Act, SA 2012, c. P-39.5 protects Alberta public servants from retaliation from reporting misconduct or wrongdoing.
Other legislation including the Competition Act, RSC 1985, c. C-34 and privacy legislation also addresses protection of an employee from retaliation upon submitting a whistleblower complaint.
Outside of these avenues, in a general employment context, retaliation against an employee for bringing forth a whistleblower complaint may result in a claim of constructive dismissal. In less common cases, a whistleblower may bring a claim that they suffered personal injury in the form of mental distress for bringing forth a complaint that was not property handled.
What are the aspects of an effective whistleblower policy?
For a whistleblower policy to work, employees must feel comfortable with reporting the wrongdoing. This involves developing a whistleblower hotline and notifying employees of how to access it. You may choose to create your own internal hotline which may be managed by your in-house human resources or legal department. While an in-house hotline may be more cost effective, employees may not feel sufficiently comfortable reporting to someone within the company. If that is the case, you can consider using an independent, third-party service whereby employees report concerns to a third-party hotline that is open on a 24/7 basis. This can be done by leaving a message, sending an electronic message or speaking with a live agent.
Whatever option for the hotline is chosen, employees must be notified of how to access the hotline and what types of complaints one can submit to the hotline. You may want to implement an education and awareness campaign when the hotline is first implemented and on a regular basis thereafter. This ensures that employees are always aware of how they can report misconduct and make complaints.
In conjunction with the above, an organization must also develop a whistleblower policy that addresses, among other things, the following:
- Who the policy applies to, namely employees but consideration also should be given to whether or not contractors are covered;
- If the accusation relates to executives and/or the individuals responsible for reviewing complaints, many systems allow for the notification and recourse for a complainant to flow to the board of directors’ level of the organization. This aspect also should be disclosed in the whistleblower policy;
- Examples of what activity may be reported to the whistleblowing hotline (financial or accounting concerns, violations of HR policies such as bullying or sexual harassment, criminal offences, danger to health and safety of employees or customers, etc.);
- A roadmap for the procedure to report the wrongdoing which may encourage reporting to a direct supervisor or manager first;
- Details of the whistleblowing report process including details of the hotline and how the hotline can be accessed (email, phone, message, etc.);
- A provision that the employer will not retaliate against the whistleblower through such steps as termination, compensation decreases, authority decreases, etc.;
- A provision stating that the employee’s identity will remain anonymous except to the extent it may need to be disclosed in the conduct of a thorough investigation or to comply with the law;
- Including the general outline of the investigation procedures set out in the policy is a good idea. The investigation itself should not be a “black box” to complainants. Complainants need to have a sense of how their issue will be adjudicated; and
- A provision indicating that protection for the employee is only provided to the extent that the employee has made the complaint in good faith.
Taking the appropriate steps to develop a fair, open and ethical whistleblower policy will ensure employees feel as though they have a safe space to raise serious concerns they experience in the workplace.
We have received a whistleblower complaint, what are the next steps?
If your organization has taken the time and care to set up a whistleblower policy and process, it is only a matter of time before you will receive the first tip or complaint. While you will want to follow the process in the policy, the first step will likely be to determine if there is some truth to the allegation or whether the whistleblower is simply reporting something out of bad faith. This may often be apparent on the face of the complaint or a small amount of investigation may reveal the likelihood of the truth of the complaint.
If you determine the complaint does not have merit, you will close the matter noting how that decision was reached. If you determine the complaint does have merit, while following the process in the policy, the next step will be to move on to the investigation stage of the process. At this stage, depending on the seriousness of the offence, a third party, neutral investigator may need to be hired. This is especially the case for more serious allegations. The investigation will involve the interview of all parties and witnesses, the gathering of evidence, and consultation of any experts. An important part of the investigative process is that the parties who are named in the complaint as well as the complainant, as the case may be, have the opportunity to respond to significant information that is uncovered through the investigation.. Following the completion of the investigation, the investigator will prepare a report on their findings and recommendations.
Upon a review of the investigator’s report, involved parties will be informed of the outcome as well as any recommended remedial actions, disciplinary measures or other resolutions.
Navigating the proper implementation of a whistleblower policy and the steps to take once one is operating can be challenging. The employment law team at Carscallen LLP has the expertise to assist your organization in developing an effective whistleblower policy, as well as to guide you through an investigation arising from a complaint.*This update is intended for general information only on the subject matter and is not to be taken as legal advice.