Navigating Ethical Dilemmas
This case involved an investigation into alleged gross mismanagement of public funds by an organizational head. The organizational head established a consulting company while still employed at the organization. The governing board approved a contract for consulting work by the organizational head related to the recruitment of their replacement. An employee at the organization saw this as problematic and brought forward a disclosure to the Commissioner’s office.
The investigation ultimately found that the organizational head was not paid as a consultant. A review of the contract, the work undertaken, and both personal and corporate records confirmed there were no payments given to the organizational head for their work. Although no wrongdoing was found, the investigation revealed lessons for the organization, particularly regarding the negative optics of executives engaging in private consulting work with their employer. It was understandable how the reporting employee perceived the situation and bringing the issue to the Commissioner’s attention was the right avenue to voice their concerns.
Enhancing Human Resource Processes
Gross mismanagement of employees is a form of wrongdoing described as a pattern of behaviour or conduct of a systemic nature indicating a problem in the culture of the organization relating to bullying, harassment or intimidation. This form of wrongdoing deals with serious cultural problems within an organization where internal mechanisms to address bullying, harassment or intimidation have been unsuccessful or are impracticable.
An investigation into alleged gross mismanagement of employees was opened when highly offensive remarks were made towards an employee by a fellow staff member. The remarks were viewed as homophobic, and the complainant alleged that the organization did not properly address the incident. The complainant believed the inaction from this incident, and others, served as evidence of a problem in the culture of the organization relating to harassment. The investigation involved a review of a substantial number of records and interviews with multiple staff. Throughout, some staff spoke positively about the culture of the organization while some staff echoed the complainant’s experience that administration was not adequately addressing incidents when they arose.
Ultimately, the evidence gathered did not indicate a pattern of bullying, harassment, and intimidation that was impacting the culture of the organization and the matter did not rise to the standard of gross mismanagement under the Act. However, the investigation highlighted the need for the organization to have effective resource management processes to maintain the trust and confidence of its employee, which led to a formal observation from the Commissioner.
Addressing Conflict of Interest Concerns
An employee reported concerns about an organizational head, alleging the construction of an office space was for their sole benefit and a conflict of interest existed involving a project with another organization.
The Commissioner’s office elected to undertake preliminary inquiries prior to initiating a full investigation. The inquiries found the decision to build the office space, and the project were the result of a balanced and informed decision-making process, subject to the scrutiny and approval of the governing board. Although the office space was advantageous for the organizational head, the primary considerations were the operational and strategic benefits for the organization. The investigation found that although a familial relationship existed between the organizational head and an individual involved with the project, the conflict was appropriately disclosed to the governing board. Moreover, the project involved several organizations, not just the interests of the family member.
Based on the information available to the employee, they had legitimate cause for concern. The Commissioner’s office was the appropriate mechanism to bring forward their concerns, and the preliminary inquiries were able to review and satisfy those concerns in an informal manner.
Taking Reprisal Allegations Seriously
The Commissioner’s office received a complaint of reprisal from an employee who was terminated without cause and no reasons were provided for the termination. The situation was further aggravated by the fact that the decision was made shortly after the Commissioner reported the outcome of a separate investigation and a finding of wrongdoing in the organization. The complainant alleged the termination was the result of their participation as a witness. The circumstances raised alarm, and the Commissioner launched an investigation.
Employees who participate in investigations by the Commissioner must feel confident that they are protected when doing so. For this reason, alleged reprisals are taken very seriously, and investigations are conducted with a high degree of care and rigour. As in this case, investigations of alleged reprisals can involve extensive and, at times, intrusive forensic examination of records and communications.
Despite the timing of the termination, the Commissioner found that the weight of evidence did not support a finding of reprisal. The complainant’s termination was based on advice from external legal counsel, as the result of separate employment concerns regarding the complainant. The complainant was a witness in the Commissioner’s previous investigation; however, they were one of many. The individuals responsible for the termination of the employee did not know the complainant was a witness. Moreover, the individuals were not aware of the Commissioner’s report and findings, which were reported confidentially to the organization.
An individual found to have committed reprisal can be subject to serious consequences including prosecution under the Act. It is therefore important that investigations into allegations of reprisal discern whether the complained-of action was actually motivated by participation in a Commissioner’s investigation or whether the action was the result of an unrelated, reasonable human resource management decision.
