Whistleblowing: The Right Stuff
Whistleblowing has been defined as a disclosure by an employee (current or former) of illegal, immoral or illegitimate wrongdoing within an organization. A whistleblower under Alberta’s Public Interest Disclosure (Whistleblower Protection) Act (the Act) makes a disclosure of wrongdoing in good faith in relation to one of the five wrongdoings defined in section 3 of the Act. While the Public Interest Commissioner’s office assesses each disclosure on its merits primarily to establish jurisdiction and determine whether an investigation is warranted, the motivation behind the whistleblowing is also a consideration.
Good whistleblowers seek to report serious and significant matters in an organization that they believe may be unlawful, dangerous to the public or harmful to the public interest. They are generally individuals with current or past access to, and detailed knowledge of, the alleged wrongdoing. They speak up honestly in the interests of accountability, transparency, and the overall well-being of the organization and its employees. Information is presented logically and even when high personal stakes exist, the whistleblower is willing and able to respond to requests in a timely and professional manner.
Recognizing & Managing Bad Faith Complaints
Under the Act, a complainant has the right to make one or more disclosures and to have them assessed in an independent and unbiased manner in accordance with the principles of procedural fairness. However, any disclosure must be free of bad faith elements that would include:
- Seeking to deceive the investigating authority;
- Making allegations that are non-serious (i.e., frivolous); or,
- Making allegations that are vexatious in nature and seeking to or cause emotional or material harm to those accused of wrongdoing.
The Act provides no license to investigating authorities or organizations to penalize with adverse employment measures the complainant behind a bad faith disclosure. Doing so runs the risk of violating the reprisal provision of the Act and generating an investigation by the office of the Public Interest Commissioner, which has exclusive jurisdiction to investigate reprisal complaints.
While it cannot punish bad faith allegations under the Act, an organization is under no obligation to expend time and resources investigating them. The main option under the Act for managing complaints made in bad faith is for the authority to decline to investigate on those grounds under section 19 of the Act. Section 19 outlines when an investigation is not required, including those occasions “…the disclosure is frivolous or vexatious, has not been made in good faith or does not deal with a wrongdoing…” A policy option outside of the Act includes managing the complainant’s communications (e.g., defining content, frequency, or both) with the investigating authority.
Determining the quality of a disclosure of wrongdoing is a delicate matter given the potential negative reaction of a complainant accused of having failed to act in good faith. Bad faith can co-exist with or cause other deficiencies that undermine a disclosure of wrongdoing to the extent that it either falls short of the jurisdictional requirements of the Act or triggers a decision not to investigate for another reason under section 19. The disclosure of a good whistleblower is typically clear, factual and easier to assess in relation to the requirements of the Act.
 This definition has been adapted from Near, Janet P., and Marcia P. Miceli. “Organization Dissidence.” Journal of Business Ethics 4, no. 1 (February 1985): 4.