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Q&A: Whistleblowing On A Dishonest Employer

Q&A: Whistleblowing On A Dishonest Employer


By Mark Swartz
Monster Contributing Writer

Most employers don’t commit highly dishonest or criminal deeds. Even those that do may be acting unintentionally. But if you become aware that your company is behaving corruptly – especially in ways that could be harmful to customers, employees or investors – you face a dilemma.
If you report what you know, will it backfire against you? And if you don’t, are you guilty of being an accessory to the crime, morally or even legally?
Regardless of how you proceed, there are right and wrong approaches to informing on your employer. Be sure you can answer the following questions before deciding whether to whistleblow.
Q1: Does my employer’s activity have to be illegal for me to report it?
A: Whistleblowing is about informing on conduct that is unethical or unsafe in a big way. It doesn’t necessarily have to be illegal. A good rule of thumb is this: if the employer would be ashamed of having the activity exposed to the media, and would suffer significantly for it, you’ve probably entered whistleblowing territory.
Q2: Which types of activity are we talking about here?
A: At the extreme, we’re looking at unmistakably criminal behaviour. The employer could be dumping toxic waste into a local stream in the dark of night. Or submitting outrageously false accounting information to the Canada Revenue Agency. Usually the actions are less blatant though. For instance, secretly paying women less than men for the same job. Covering up
Health and Safety regulation violations after an employee is injured at work. Inflating sales and revenue figures substantially, to trick investors or shareholders into pumping more money in to the firm.
Q3: Would I be whistleblowing when reporting just any wrong actions?
A:  According to Canadians For Accountability, a non-profit dedicated to assisting whistleblowers, a person usually isn’t a whistleblower if the matter being reported pertains to:
  • a personal or personnel issue, such as workplace bullying or harassment
  • a dispute between the person and the organization, such as holiday or severance pay
  • simple mismanagement, such as inappropriate work assignments or poor supervision leading to hardship (as opposed to gross mismanagement, which creates risks to either the organization or the public)
Q4: Am I obligated to do anything if I find out about gross misconduct?
A: The answer to this depends on the type of misconduct being committed by the employer, and how much you know about it (or suspect). Be sure to consult a lawyer for advice about your particular circumstances. Acting hastily – or not acting at all – could leave you unnecessarily exposed.
Q5: What kind of backlash could I face for whistleblowing?
Marie-Yosie Saint-Cyr, LL.B., a respected Canadian HR law author, says “it is common for whistleblowers to experience demotion, dismissal and otherwise negative treatment from their employers after they disclose the malfeasance or corruption.” In addition, a few employers have been known to retaliate against whistleblowers (and their family members) by doing things like hiring private investigators to follow them.
Q6: Are there legal protections available to whistleblowers?
A: Know your employment rights before proceeding either way. The only Canadian provinces that have whistleblowing legislation for the private sector are Saskatchewan and New Brunswick. However Saint-Cyr points out that “federal law has affected all jurisdictions in the public and private sectors since late 2004, with section 425.1 of the Criminal Code.”
It’s a criminal offence for employers to take (or threaten) disciplinary action, or otherwise adversely affect the employee’s job, to stop the employee from providing information to law enforcement officials about the commission of an offence by his or her employer. Employees are not given this protection if they contact a media source or an outside agency or advocacy group.
The Public Servants Disclosure Protection Acthas protected whistleblowers in the federal public sector since early 2007. As well, some other jurisdictions have enacted specific whistleblower laws to provide these protections in the public and private sectors.
Q7: What steps should I take as a potential whistleblower?
If you encounter, or suspect, serious breaches at work, start by documenting carefully. Write down what you’ve seen, heard, and taken part in. Keep the records in a safe place. Maybe store them away from the workplace so they won’t be discovered until you’re ready.
Avoid speaking out before you’ve received legal advice – unless you can whistleblow anonymously and still be effective. Check if your employer has a confidential program for informing. Meanwhile consult trusted friends and colleagues for advice on how they would handle things.
Carefully seek out allies internally who will corroborate your statements and support you. Consider bringing a witness along to meetings, unless it will interfere with gathering evidence. Resist bitterness and the urge for revenge. These emotions cloud judgement.
Finally, Canadians For Accountability suggests that you “know when to let go.” Unfortunately, not every important battle can be won.
Legal Disclaimer: None of the information provided herein constitutes legal advice on behalf of Monster.

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