Sexual Harassment

Whistleblowing and Employee Protection

There may be situations when an employee witnesses illegal, immoral, or otherwise illegitimate practices by their employer during the course of their employment. When an employee discloses these practices to persons or organizations that may be able to take action against the employer, they are considered to have “blown the whistle”, otherwise known as “whistleblowing”.

Ontario’s public sector employees are protected for whistleblowing under the Public Service of Ontario Act, 2006. Private sector employees may be protected under different laws as listed below, depending on what type of information is being disclosed, as well as the employee’s motive.

It is essential for employers and employees alike, to understand what protections are available, and under what circumstances.

Disclosure of Different Information

Disclosure of Health and Safety Concerns

Employees who disclose unsafe practices or health concerns are protected by the Ontario’s Occupational Health and Safety Act. Having this protection available is of public interest, where unsafe practices may lead to injury or even death.

Disclosure in Securities

Violations or misconduct in the securities field have the potential of misguiding and misappropriating funds and investments, or taking advantage of information that is otherwise illegal. This may not only lead to financial consequences for the public, but the general financial stability of the economy as well.

Ontario’s Securities Act encourages individuals and companies to report serious violations of securities laws or other securities-related misconduct. The Securities Act  also provides for a civil cause of action for whistleblowers who experience a reprisal for providing information to the Securities Exchange Commission.

Disclosure of Criminal Activity

The Criminal Code protects whistleblowers who disclose information to authorities regarding criminal activity by their employers.

In particular, the Criminal Code prohibits employers from disciplining or threatening to discipline an employee who is intending to provide or who has already provided information of the employer’s statutory or regulatory violations.

An employer who contravenes the above is guilty of either an offense punishable on summary conviction, or of an indictable offence and liable to imprisonment for up to five years.

Caveats

An employee will generally not be subject to the same protections a sa whistleblower if the issue reported pertains to personal or personnel issues, a dispute between the employee and the organization, or simple mismanagement problems. Employees who have been found to be vexatious, or to have attempted to harm the employer and its reputation, were not protected as whistleblowers.

It is important to note that if a whistleblower is disclosing information, they must exhaust internal whistleblowing mechanisms before going to the pulic or media. Doing otherwise may jeopardize the protections that are offered to employees who disclose illegal or improper practices.

In Merk v International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, the Supreme Court of Canada stated that the failure of employees to try and resolve such matters internally qualifies as disloyal and inappropriate conduct.

Employer Takeaways

If an employer does not have an internal policy on whistleblowing and on procedures to report illegal or improper conduct, it may be more difficult to prove there existed internal mechanisms for an employee to use.

Having a robust and transparent internal whistleblower protection policy will therefore protect the employer both in terms of early discovery of wrongdoing, and in justifying discipline against an employee who breaches their confidentiality obligations and their duty of loyalty.

Contact Us for Help

If you are an employer who has questions about potential whistleblowing, or an employee seeking to clarify your rights, our team of experienced employment and human rights lawyers are happy to help. Contact us at 1-(800)771-7882, or email [email protected] and we would be happy to assist.

If you are a small or medium size company looking for full-service support, visit our CLO program page for our strategic solutions.

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Disclaimer: This blog is not intended to serve as, or should be construed as legal advice, and is only to provide general information. It is in no way particular to your case and should not be relied on in any way. No portion or use of this blog will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, fill out the contact form, call 1-(800)771-7882, or email [email protected].