Expanded protection for employees in the public service
The Public Interest Disclosure (Whistleblower Protection) Act has been amended. The amendments to the Act provide important changes that expand the jurisdiction of the Public Interest Commissioner and protection for whistleblowers. Changes include expanding the types of “wrongdoing” that can be investigated, providing employees a choice of either reporting wrongdoing internally, or directly to the Commissioner in the first instance, and providing public service employees the ability to obtain remedies if they suffer a reprisal. The expanded jurisdiction of the Act, now includes Members of the Legislative Assembly, Ministers, the Premier and their offices and will also include prescribed service providers who will be defined in a succeeding regulation.
A safe and healthy workplace is fundamental to the success of an organization. These amendments offer expanded protection for whistleblowers and in doing so, promote public confidence in the administration of the public service.
These are the key amendments employees need to be aware of:
Expanded definition of “wrongdoing”
The Act previously identified “gross-mismanagement of public funds or a public asset” as a wrongdoing. This definition of wrongdoing has been repealed and replaced with:
3(1)(c) gross mismanagement, including an act or omission that is deliberate and that shows a reckless or wilful disregard for the proper management of
(i) public funds or a public asset,
(ii) the delivery of a public service, including the management or performance of
(A) a contract or arrangement identified or described in the regulations, including the duties resulting from the
contract or arrangement or any funds administered or provided under the contract or arrangement, and
(B) the duties and powers resulting from an enactment identified or described in the regulations or any funds
administered or provided as a result of the enactment,
(iii) employees, by a pattern of behaviour or conduct of a systemic nature that indicates a problem in the culture of the
organization relating to bullying, harassment or intimidation.
What does this mean?
In addition to gross mismanagement of public funds or a public asset, the expanded definition of gross-mismanagement includes services provided under certain contracts or enactments which will be identified in the coming regulations.
The new definition also includes bullying, harassment or intimidation of employees; however, this is not intended to address individual complaints which arise in an organization and are appropriately managed through internal mechanisms. This expanded definition is intended to address circumstances of bullying, harassment or intimidation where internal mechanisms have failed, and the conduct has become systemic and cultural in the organization. This is supported through a subsequent provision in the Act stipulating the Public Interest Commissioner must be satisfied that all applicable mechanisms, including human resource processes or processes under a collective agreement, have been used or considered before investigating a disclosure relating to gross mismanagement of employees. [Sec 19(1.1)]
Moreover, the amendment now provides a specific definition of what actions qualify as “gross mismanagement”. Specifically, gross mismanagement occurs when an act or omission is deliberate, and shows a reckless or willful disregard for proper management.
Direct disclosure to the Public Interest Commissioner
Previously, the Act required employees to make their disclosure initially to their designated officer, and permitted a direct disclosure to the Public Interest Commissioner only under certain circumstances. The amendments now permit a disclosure to be made directly to the Public Interest Commissioner in the first instance. [Sec 9]
What does this mean?
Employees now have the option of reporting wrongdoing to their Designated Officer or to the Public Interest Commissioner. However, the Commissioner continues to have the discretion to refer a disclosure to a Designated Officer for investigation if the Commissioner considers it appropriate.
Inclusion of supervisors in providing advice under the Act
Previously, employees considering making a disclosure could request information or advice only from their Designated or Chief Officer. Amendments to the Act now permit employees to also seek advice from their supervisor. [Sec 8(1) and (2)]
What does this mean?
When an employee seeks advice about making a disclosure, the employee is then protected from reprisal for seeking that advice. This amendment recognizes that many organizations have internal policies that require employees to try and resolve an issue by first reporting a concern (or alleged wrongdoing) to their supervisor; however, if an employee chooses to follow their internal policies and seeks advise from a supervisor first, they ought to be afforded the same protections from adverse employment action.
Financial remedies for whistleblowers
Amendments to the Act now include the ability for employees to obtain financial remedies in cases where the Commissioner finds a reprisal occurred. If, following an investigation, the Commissioner finds that a reprisal occurred, the Commissioner is obligated to refer the decision to the Labour Relations Board for determination as to the appropriate remedy. [Sec 27.1(1)]
What does this mean?
Employees who suffer a reprisal will now be able to obtain remedies through the Labour Relations Board. Remedies may include permitting an employee to return to their duties or reinstating an employee, paying compensation for lost remuneration, paying expenses or any other financial losses, rescinding any form of discipline or reprimand on the employee that constituted the reprisal, or taking steps to rectify the situation resulting from the reprisal.
EXPANDED JURISDICTION OF THE ACT
The amendments have expanded jurisdiction of the Act to include Members of the Legislative Assembly, Ministers and their offices, and the Premier (including his or her office). Jurisdiction has also been expanded to include prescribed service providers who will be defined in the succeeding regulation. [Sec 1(h.1) & Sec 4.2]
What does this mean?
Employees within offices of Members of the Legislative Assembly, Ministers offices and the Premier’s office are now afforded protection under the Act. MLA’s, Ministers and the Premier are now also subject to the Act.
New Regulations
There are several provisions in the legislation which may be impacted by succeeding regulations. The office of the Public Interest Commissioner will provide information about these regulations when they come into force.