The Act requires that public entities, to which the Act applies, have written procedures for managing and investigating disclosures made by employees.
The Commissioner’s office has observed several instances where organizations have attempted to conflate these procedures with other existing internal policies and codes of conduct. The intent of doing so is often rooted in the desire to give broad protection to employees on any matter they report. While the intent may be legitimate, there are significant challenges and risks when combining whistleblower procedures with other internal policies.
Improper application of the Act
The purpose of the Act is to facilitate the disclosure and investigation of significant and serious matters that may be unlawful, dangerous to the public or injurious to the public interest. The Act is intended as a mechanism to report serious forms of wrongdoing, and in this regard, legislators included the specific types of wrongdoing to which the Act applies.
Organizations may be creating and applying policies that do not conform with the legislation if they include forms of wrongdoing or terminology not included in the Act. Phrases such as “improper activity” or “inappropriate conduct” for example, are not contemplated by the Act, and contraventions of policy or codes of conduct—though wrong—are not forms of wrongdoing which the Act was intended to address.
Confusion of employees
A whistleblower procedure should be straight forward and encourage employees to report internally. This means making the procedure simple and easy to follow. Organizations that blend whistleblower procedures with other processes can create confusion and may dissuade employees from reporting the wrongdoing or cause them to use another external mechanism to try and address their concern.
Averting legitimate whistleblower complaints
Where multiple policies and complaint processes are interconnected, the process the complainant intended to use becomes ambiguous. A complainant will not always reference the Act or state they are a “whistleblower”. Rather, an employee will simply report their concern using the mechanism that is made available. The Commissioner’s office has seen cases where an employer has arbitrarily applied a process or policy other than the whistleblower procedure to manage the complaint, despite the complainant’s intent that the matter be addressed under the Act. In such cases, the employee has a legitimate belief that they are protected as a whistleblower. Ultimately, these matters made their way to the Commissioner’s office as the employees did not believe the whistleblower procedure was appropriately applied.
Restricting human resource decisions
The Act protects employees from reprisal when they make a disclosure of wrongdoing in accordance with the Act. The subject matter of the disclosure is inconsequential; rather, employees are protected for the action of making the disclosure. A reprisal is serious. Those found to have committed a reprisal may face prosecution under the Act, substantial penalties, employment consequences, and may be liable for remedies. These consequences have a significant deterrent effect.
Where an organization elects to include other forms of misconduct in its whistleblower procedure that are not contemplated by the Act, the organization is inviting employees to expect legislative whistleblower protections for reporting other types of complaints. For example, a code of conduct infraction can be addressed through the organization’s standard human resource processes. However, if an organization includes a code of conduct violation as a reportable form of wrongdoing under a whistleblower procedure, employees may seek whistleblower protection for reporting interpersonal disputes and grievances between management and employee. Further, the employer may become restricted managing the issue or making reasonable human resource management decisions out of fear it may be perceived as a reprisal.
As a best practice, employers should ensure whistleblower policy and procedure is independent from all other internal procedures, and that a distinct process is in place for making public interest disclosures. This removes ambiguity and ensures both the employee and employer are clearly aware that a complaint is being made under the Act, that decisions must be made under the Act, and that legislative protections apply to the employee.