Severance agreements are contracts sometimes used to reach an amicable conclusion to an individual’s employment with their employer.
Usually a severance agreement provides extended compensation or benefits to the employee beyond the end of their employment, and in exchange, the employer receives a release whereby the employee agrees not to pursue any claims they have against the employer.
Releases are generally drafted in very broad terms, however some employers have recently begun to include language that requires an employee to reveal if they have previously made a disclosure to the Public Interest Commissioner, or prohibits the employee from making a complaint under the Public Interest Disclosure (Whistleblower Protection) Act (the Act ).
The Act provides a safe avenue for public sector employees to report matters they believe may be unlawful, dangerous to the public or injurious to the public interest, without fear of reprisal. Protection from reprisal includes confidentiality, anonymity, and the legal ability to disclose confidential and private information. The Public Interest Commissioner is the resource for employees who want to report wrongdoing with the confidentiality and protection provisions provided in the Act. In her role, the Public Interest Commissioner works to foster a culture where whistleblowing is embraced and where employees and management share a common goal of detecting and remedying wrongdoing. This supports an effective, open and accountable public service and promotes public confidence in the administration of the public sector. As such, the existence of any reference to the Public Interest Disclosure (Whistleblower Protection) Act within severance agreements is a significant concern to the Public Interest Commissioner.
A severance agreement that attempts to expose whistleblowers or prohibit employees from reporting wrongdoing in the public service undermines the spirit and intent of the Act. Such agreements conflate public and private interest matters, and public entities that draft severance agreements that prohibit whistleblowing may be viewed as attempting to “buy” their way out of their responsibilities under the Act using public funds. In addition, the Public Interest Commissioner may consider it a reprisal for an employer to enforce the terms of a severance agreement on the basis that an employee has reported wrongdoing or taken any other step under the Act.
As such, it is recommended that severance agreements drafted by departments, public entities, offices or prescribed service providers do not include language that requires a whistleblower to waive their right to confidentiality, or denies employees any future self-initiated activity under Alberta’s Public Interest Disclosure (Whistleblower Protection) Act.