Whistleblowing employee should have gone to police, not union

Merk v. I.A.B.S.O.I., Local 771, 2003 CarswellSask 720, 28 C.C.E.L. (3d) 179 (Sask. C.A.)

For 12 years Linda Merk was the office manager and bookkeeper for, but not a member of, the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771. She became concerned about possible expense account fraud by two of her supervisors and spoke to one of them about it. The general president of the union, on receiving a complaint about the matter, instituted an investigation, the result of which dismissed Merk’s complaints but which was found by the original trial judge to be “completely inappropriate.”

On Oct. 19, 2001, Merk wrote to the general president about a number of issues, including the expenses, in which she said if the union didn’t act “the members are going to the police.” On Nov. 5 she received a letter of dismissal from the union, which said in part that it was “due to a number of matters…, as well as you forwarding your Oct. 19, 2001, correspondence to (the general president).” Merk started an action under s. 74 of Saskatchewan’s Labour Standards Act which states an employer cannot discharge an employee who has reported “to a lawful authority any activity that is or is likely to result in an offence pursuant to the act.”

In ruling in favour of the union, Justice Gerwing of the Saskatchewan Court of Appeal upheld two lower court rulings that the union leadership is not a “lawful authority.” As the term appears in the act it “suggests that the lawful authority must be one that is capable of exercising authority with respect to the conduct reported as an offence. Here the offence threatened to be reported is fraud and the union hierarchy, while it can enforce its own bylaws, has no capacity to deal with this as an offence.”

The court rejected the argument of Merk’s counsel that a liberal interpretation of the term was required to protect ‘whistle blowing’ employees. “This section was not intended to codify all relationships between employer and employee, but merely to protect the employee in one specific situation,” wrote Justice Gerwing.

Latest stories