To blow the whistle or not?

Various protections available for all workers, risks still persist

As kids, most of us were told by parents or teachers not to snitch on our playmates — after all, no one liked a “tattletale.” We learned to keep our lip buttoned when we spotted our peers acting badly.

Things aren’t so different in the adult realm. Even if we’ve made pledges to adhere to professional ethics, speaking up can be intimidating.

Andrea Dunkle, a long-time health and safety officer working at a Saskatoon prison, identified a number of issues in the institution, including what she considered to be inadequate training. After writing up her concerns in a report in January 2007, Dunkle’s findings were overturned by a senior bureaucrat 22 months later. She was told to drop the matter, but continued to try to get the matter reviewed again. After several warnings, she was fired.

Dunkle took her case to the legislature and the media with some help from an NDP labour critic, claiming the prison was unwilling to let her do her job.

Safety professional Rob Stewart, president of Pragmatic Solutions in Calgary, said it’s not uncommon for safety officers to find themselves in awkward predicaments.

“Safety people don’t generally have budgets or authority,” he said. “Even if a company prides itself on valuing safety, management may consider a safety officer’s advice to be at odds with financial priorities and refuse to take action.”

Sometimes, the safety officer can shrug it off, particularly if it’s something more minor or not an immediate threat to worker safety. But if it’s something that requires speedy action — like an overhead door that’s at risk of falling on a worker — a safety officer can find themselves in a bind when the company resists following their recommendation. 

There are a couple of options for a worker who’s tried to draw attention to a safety issue at work without success. The first option would be to use the company’s internal whistleblowing procedures. However, Stewart questions their effectiveness since it’s a conflict of interest for a company to investigate itself. An impartial, third-party is critical, he said.

Alternatively, workers can approach a provincial health and safety board. The vast majority of workers are considered provincially regulated and thus protected by provincial legislation, said employment lawyer Hena Singh of Toronto’s Rubin Thomlinson LLP.

In Ontario, there are a half-dozen pieces of legislation that could protect whistleblowers, said Singh, including: two environmental acts, the Occupational Health and Safety Act (OHSA), the Human Rights Code, the Pay Equity Act, the Employment Standards Act and the Workplace Safety and Insurance Act.

The OHSA prevents employers from punishing workers who have refused to violate the act by ignoring hazards to health and safety. Similar provisions exist in many other provinces, said Singh.

If employees lodge a complaint with a health and safety board, they have the option of maintaining their anonymity to the company, said Singh.

“(The board will) go in and do an audit or investigation based on an anonymous complaint if they think there’s some substance to it,” she said.

In addition to investigating health and safety risks, boards will also investigate employee reprisals, in which an employee was harmed as a result of drawing attention to a perceived problem. Reprisals can include outright firing, suspensions, demotions and bullying. If an investigation is conducted, the onus is on the employer — not the employee — to justify its behaviour, said Singh.

However, the legislation is not universal across Canada and different regions have different provisions, she said.
In Stewart’s view, more needs to be done — especially in Alberta — to protect workers. Even when investigations do happen, they’re often skin-deep, he said.

 “(A complaint) should be a red flag,” said Stewart. “If someone’s reporting this about the company, there’s more going on than a crane that’s not rigged properly.”

The employment standards provisions of the Canada Labour Code contain protections for federally regulated employees who have testified, given information to an inspector or sought enforcement of the code.   

Canada’s public servants are protected by federal laws, including the Public Servants Disclosure Protec-tion Act (PSDPA), which came into law in 2005.

The act created The Office of the Public Sector Integrity Commissioner in 2007, designed to look into cases of alleged wrongdoing in government agencies, as per the complaints of federal employees.

But David W. Hutton, executive director of the Federal Accountability Initiative for Reform (FAIR), said the PSDPA is grossly insufficient.

“Basically it’s riddled with loopholes and shrouded in the most impenetrable secrecy,” he said. “It’s stacked against the whistleblower and they’re unlikely to prevail.”

Recent events appear to corroborate his point of view. In October 2010, the first Public Sector Integrity Commissioner, Christiane Ouimet, retired early in the midst of an investigation by Canada’s Auditor General.

In addition to mistreating her employees, the Auditor General determined that Ouimet failed to perform her duties. None of the 200 complaints filed during her tenure were investigated.

Hutton said stronger laws are needed to protect whistleblowers, who often suffer more than job loss. He said it’s not uncommon for workers to be alienated or even bullied for reporting problems, which can cause stress-related health issues — even post-traumatic stress disorder, in extreme situations.

Whether they resign or are fired, whistleblowers may find themselves unable to find another position in the public service — or at all.

Hutton knows of one whistleblower who is unemployed three years after identifying financial malfeasance in her union.

“Research consistently shows that whistleblowers are responsible people who give their organizations every possible chance to put things right,” said Hutton.

Caitlin Crawshaw is an Edmonton-based freelance writer. She can be reached at

What to consider before blowing the whistle

Before shining the spotlight on a possible risk to health and safety, here are a few things to consider:

Tenure at the company: Is leaving the company an option if things turn sour? It might be more effective to blow the whistle as an employee at the company, but safer to do so upon moving on to another position.

Evidence: As with any work-related issue, it can be handy to keep records. Keeping important e-mails, as well as a work diary at home, can help track key events and responses.

Getting a good lawyer: It can be useful to talk to an employment lawyer to review the potential consequences of blowing the whistle. If termination has occurred after blowing the whistle, it’s smart to seek counsel.

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