The term whistleblower generally refers to a disclosure by an individual of mismanagement, corruption or wrongdoing.
While whistle-blowing has been institutionalized in the United States through the enactment of the Sarbanes-Oxley Act in 2002, many Canadian employers are now voluntarily implementing whistle-blowing programs within their organizations in the name of sound governance.
Employers must pay careful attention to the management of their whistle-blowing programs. The reason is that they could potentially result in the psychological harassment of those targeted by complaints. In a recent ruling of the Quebec Commission des relations du travail (“Commission”) in Bernard c. Olympus NDT Canada inc., 2010 QCCRT 461, the Commissioner found the Defendant Employer responsible for the psychological harassment suffered by one of its general managers.
In this matter, the Plaintiff Employee (“Manager”) had been the general manager of the Employer for nearly two years when the Employer decided to put into operation a confidential whistle-blowing program. The whistle-blowing program was formally announced to all employees, who were encouraged to use the external, anonymous and confidential whistle-blowing program to formally complain or report about wrongdoing or infringement of the company’s Code of Conduct or any other policy. Any complaints would be sent to an independent third party for investigation. The Employer was utilizing an external provider to facilitate the review and management of any complaints and disclosures made by employees.
What was originally intended to be a transparent process rapidly became, for the Manager at the least, “a machine to promote psychological harassment”. Early on, it became evident that the employees who used the whistle-blowing program had a very broad interpretation of the term “wrongdoing”. The program experienced a considerable flow of complaints. An internal Committee of six people was established to address and respond to the anonymous complaints, some of which were directed at the Manager who was on the Committee.
Every complaint had to be reviewed and addressed. A significant number of complaints directly concerned the Manager. At the hearing, the Manager indicated that as a consequence of his employer’s management of the whistle-blowing program, he lost considerable time and energy explaining and justifying his actions regarding the various complaints. The Manager testified that his anxiety increased due to the number of complaints relating to him. Consequently, the level of stress he was experiencing became so great that he had to take a sick leave. Shortly thereafter, the Employer terminated the Manager’s employment by way of a letter sent to his home during his sick leave.
The Commissioner found that each incident of harassment complained of by the Plaintiff, when considered alone, was insufficient to establish workplace harassment. Nevertheless, when considered together, the Commissioner held that these incidents did constitute workplace harassment. As for the whistle-blowing program itself, the Commissioner found that the nature of all of the complaints that had to be reviewed and addressed, the insults, attacks and accusations within these complaints and the hiring of an independent investigator for each and every complaint, exposed the Plaintiff to daily humiliation since it enabled employees to regularly challenge his already diminished authority in the workplace. Moreover, the confidential and anonymous nature of the system coupled with the seriousness with which each and every complaint was dealt with by the Employer resulted in an untenable position for the Manager and therefore constituted a violation of the Employer’s obligation to protect the Manager from harassment in the workplace.
This decision offers an interesting caution regarding the interplay between an employer’s obligations to protect its employees from psychological harassment and an employee’s duty to disclose wrongdoing within the organization in which they work. While many countries have enacted laws protecting employees from reprisals for whistle-blowing, the legal framework for the proper implementation of whistle-blowing programs in Canadian workplaces is still unclear. Whistle-blowing programs in the workplace trigger a variety of rights and obligations for employers and employees alike and while the jurisprudence on the subject remains in its infancy, the recent ruling of the Commission establishes that employers may be held responsible where their whistle-blowing programs result in the psychological harassment of those employees tasked with the management of the program itself.