Case Summaries 2021-2022

Allegation of danger to healthcare workers triggers an expeditious response

The COVID-19 pandemic created an inherent danger to the health and safety of the public, and even more acutely to healthcare workers who have been selfless and steadfast in caring for those most seriously affected by the pandemic. When an employee came to the Commissioner’s office with concerns about a potential risk to the health and safety of healthcare workers, the Commissioner ordered an urgent investigation.

The pandemic triggered an unprecedented global demand for Personal Protective Equipment (PPE). PPE is a critical line of defence for front-line healthcare workers against COVID-19 and was particularly crucial during the height of the pandemic. An employee recognized suspicious labelling on shipments of N95 respirators destined for healthcare workers and brought forward concerns regarding the integrity of the product. These concerns were exacerbated when we learned the manufacturer’s approval had been revoked by Health Canada, making importation and sale of the product unlawful.

The Commissioner’s concern and sense of urgency was matched by the affected organization and the designated officer who immediately responded and worked with the Commissioner’s office to expeditiously investigate the allegations.

Ultimately, we determined the concern regarding labelling of the product was the result of classification terminology used by Health Canada which deviates from terminology used in other jurisdictions. Although the classification terminology differed, it did not affect the product itself. We also determined that the product had been procured prior to Health Canada revoking approval, the product had been tested to meet regulated standards, and the affected entity’s procurement group had already confirmed continued use of the product with Health Canada. Further, it was also already in the process of procuring and fit-testing staff with product from a new manufacturer. In this regard, the affected entity had exercised diligence and took steps to ensure the integrity of the product.

With the support of the designated officer, the investigation was concluded quickly, preventing a disruption in the delivery of the PPE to healthcare workers. Moreover, it gave a sense of relief to the whistleblower and other employees who may have had similar concerns.

The action taken by the whistleblower is precisely what the legislation intended. An employee believed something may be seriously wrong and recognized the Commissioner’s office as the safe avenue to report it. The employee who came forward is commended and their identity will remain confidential.

Multiple staff contributing to a toxic work environment

An investigation cleared administrators of wrongdoing; however, significant work still lies ahead to improve a school’s workplace environment.

The Commissioner’s office has received an increased number of cases involving allegations of gross mismanagement of employees. This type of wrongdoing occurs where there is a pattern of behaviour or conduct of a systemic nature, indicating a problem in the culture of an organization relating to bullying, harassment, or intimidation.

Some public entities are very large and operate out of various geographic regions and business centres, resulting in the creation of sub-cultures within those branches. This has been particularly evident in schools that are part of larger public-school divisions. A toxic culture within a school can have a debilitating impact on those who work and learn there, even if the problem is isolated and does not necessarily impact the culture of the broader division.

In one such case, employees of a school brought forward allegations of gross mismanagement against the principal and vice-principal. A subsequent investigation was undertaken which involved interviews of 24 staff at the school. Ultimately, the investigation did not support the allegations. Though there were consistent concerns with the working environment and culture at the school, the investigation determined the actions and behaviours of the principal and vice-principal were not the sole cause but more so a contributing factor. Several employees shared a responsibility for creating significant interpersonal issues that existed at the school. There was evidence of a lack of professional decorum at times by administrators. As well, there were ongoing disagreements and differences of opinion between teaching staff and administrators relating to programming decisions and operational changes. However, the investigation determined these types of disagreements did not constitute bullying, harassment, or intimidation.

All parties agreed there was a level of toxicity within the working environment at the school. The toxicity resulted from various factors, such as the conduct of administrators and certain staff, as well as a sense of division and apprehension perpetuated by those involved. This was exacerbated with anxieties surrounding the management of a school under budgetary constraints during the COVID-19 pandemic.

The findings of the investigation were reported to the Superintendent of the Division so that informed decisions may influence the appropriate change.

Alleged misuse of public assets remedied through informal resolution

When an employee makes a disclosure, the Act affords the Commissioner the ability to take any steps she considers appropriate to help resolve a matter. In some circumstances, an investigation may not be the most efficient or effective way to address an alleged wrongdoing. In cases where an organization recognizes wrongdoing may be occurring, has a positive culture around whistleblowing, and is keen to work with the Commissioner’s office to resolve the matter as quickly as possible, the Commissioner may first attempt an informal resolution.

In attempting informal resolution, the Commissioner outlines the issues that must be addressed and corrected to avert the need for investigation. This process is not only efficient but gives the public entity the opportunity to be accountable and responsible to resolve a matter, subject to the Commissioner’s oversight. Informal resolutions have been an effective way of addressing potential wrongdoing within organizations.

In one case, an employee reported concerns regarding the misuse of public assets. Specifically, they alleged certain staff members were using the resources, tools, and space within a publicly owned facility for their own personal use. When informed of the allegation, the executive leader responsible for the facility was keen to work with the Commissioner’s office to determine what was transpiring and put a stop to any inappropriate practice. A liaison representing the public entity worked with the Commissioner’s office as internal inquiries were made and steps were taken to resolve the matter. The affected entity recognized the opportunity to revise its applicable policy to meet current government standards. When communicated to staff, the practice of personal use of the public space ceased immediately. Further, administrative leaders reviewed and included all assets on the current capital asset list and appointed a surplus agent to manage the disposal of assets in a manner that met government standards.

The affected entity took the matter seriously and demonstrated accountability in addressing the concerns that were brought forward. Its response, under the Act, demonstrates that public confidence in the administration of the organization is well founded. The Commissioner was satisfied the matter was dealt with appropriately and an investigation was not required.

 

Conflict within an organization leads to gross mismanagement of employees

When wrongdoing is found under the Act, it provides the opportunity for public entities to ensure whistleblower protection policies reflect current best practices and promote a positive workplace culture where whistleblowing is embraced.

An investigation found the President and CEO of a publicly funded academic institution grossly mismanaged employees through a pattern of bullying and intimidation, indicating a problem in the culture of the organization.

The investigation found long-standing cultural issues that existed within the organization, aggravated by interpersonal conflicts with senior employees and deep-rooted management practices that conflicted with change. There was also a divide in perspective or inability to effectively apply the necessary cultural change. Although these problems existed prior to the President and CEO’s tenure, their behaviour contributed to and perpetuated them.

Most employees interviewed described a pattern of intimidating and bullying behaviours by the President and CEO. They gave examples of repeated incidents where employees were intimidated, offended, or degraded, and where the President and CEO asserted their authority through aggressive behaviours such as yelling and threatening employment. This induced fear and deterred employees from making decisions or questioning decisions made by the President and CEO. These behaviours had serious consequences on the workplace culture and resulted in the degradation of the work environment for employees at the public entity.

Following the investigation, the Board of Directors applied substantive corrective measures stemming from five recommendations made by the Commissioner. The President and CEO departed the academic institution during the investigation, and a new President and CEO has been hired. The new President and CEO has undertaken several initiatives, including an employee engagement survey (to be completed in 2022), involving all employees in new strategic planning and budgeting processes, hosting monthly all-staff forums, and conducting regular meetings with groups of staff. An engagement audit that included interviews with more than 300 staff was also conducted by a third party—the results of which will be used as part of the organization’s strategic planning.

Leadership training is being provided to enable staff to learn and work together, and the Board has implemented an annual review to evaluate the performance of the President and CEO. This is a comprehensive review aligned with a new strategic plan which, among other things, aims to be one of the top employers in Canada. Further, human resources staff received training on how to manage whistleblower complaints—including how to direct people to the appropriate process—and the organization has worked to update its whistleblower policy and Respectful Workplace Policy.

Implementing cultural reform requires time and dedication. It is a process of building trust and confidence, and a spirit of collaboration between staff and organizational leaders. The steps taken by the Board of Directors and the new President and CEO are leading the organization in the right direction.