Enactment of Whistleblower Protection Legislation in Newfoundland and LabradorPublic Interest Disclosure and Whistleblower Protection Act, SNL 2014, c P-37.2
Background and Coming into Force
Newfoundland and Labrador was the seventh Canadian province to enact whistleblower protection legislation, which came into force on July 1, 2014. It is designed to promote the good faith disclosure by public service employees of significant and serious wrongdoings without fear of reprisal. The Public Interest Disclosure and Whistleblower Protection Act (the “Act”) describes the steps for disclosure, the process of investigation by the citizens’ representative, and mechanisms for the protection of the employee making the disclosure. The Act is not retroactive, however, and only applies to wrongdoings occurring after July 1, 2014.
The Act applies to employees in government departments, boards, corporations, authorities and agencies, including regional health authorities and school boards. Confidentiality of the employee is stated to be a priority throughout the process, but is not guaranteed. As the Act is designed to promote good faith disclosure by employees, it also allows for disciplinary action against an employee who makes a frivolous, vexatious or bad faith claim.
Wrongdoings are described in the Act as committing, or directing or counselling another person to commit, a legal offence, an act or omission that creates a substantial danger to persons or the environment, or a gross mismanagement of public funds.
Reprisal is defined in the Act as discipline, demotion, termination, or measures that adversely affect employment or working conditions, as well as threats of any of these measures.
Advice and Disclosure
An employee can make a disclosure of information about a wrongdoing that he/she reasonably believes has been committed or is about to be committed. While considering making a disclosure, the employee can first request advice from the citizens’ representative. The disclosure is to be in writing and signed by the employee making the disclosure. It is to include the name of the individual committing the wrongdoing and the date and description of the wrongdoing.
Some provisions of the Act restrict the disclosure of certain information including deliberations of the Executive Council and documents that are restricted by solicitor-client privilege. In addition, the employee making the disclosure should take all reasonable precautions to minimize the disclosure of personal or confidential information.
The investigation by the citizens’ representative is designed to be informal and quick. The citizens’ representative has the discretion to proceed with or cease an investigation or refer the matter to the auditor general or the commissioner for legislative standards. If the citizens’ representative ceases the investigation or makes a referral they are to report on the matter to the employee that made the disclosure. There is no time limit for this report other than “at the time the citizens’ representative considers appropriate”. The Act also provides for measures against a person that attempts to impede an investigation.
After an investigation the citizens’ representative is to give a copy of their report to the employee that made the disclosure and the appropriate individual in the department or public body. This report may include recommendations that the department or public body must comply with. The Act also provides for accountability to the general public as an annual report is to be submitted to the House of Assembly addressing the number of inquiries, disclosures, investigations, recommendations, and potential issues and recommendations for improvement of the process.
Protection of Employee
The legislation allows the Labour Relations Board to hear complaints from employees if they feel that reprisal has been taken against them as a result of a disclosure. The Labour Relations Board can provide remedies such as reinstatement, compensation, and damages.