Misconceptions on whistle-blower bill

Kamina Johnson Smith , Contributor

It has recently been reported on more than one occasion that the whistle-blowing bill mandates that employees should report matters to their employers in all circumstances, and further, that I am advocating that this should remain so.

Given the importance of this bill to the national interest, and the need for the public to understand and appreciate the proposals before the Joint Select Committee of Parliament, I thought it important to clarify these issues.

The first matter I wish to clarify is that the bill, known as the Protected Disclosures Act, does not mandate initial disclosure to an employer in all circumstances and the second is that I am not advocating that this be the case.

Very serious matters

As currently drafted, the bill allows for direct external disclosure where the matter being disclosed is "exceptionally serious". The phrase is appropriately left for the interpretation of the court on a case-by-case basis, so that its breadth can be maintained. It also does not limit the person or body to whom the disclosure is made, save that the courts must consider whether, in all the circumstances, the person or body to whom the disclosure was made was reasonable.

Most persons will probably agree that each of the scandals which the country has endured over the last two decades would fall into the category of "exceptionally serious" matters. Such matters would, therefore, not require reporting to an employer as a first step.

Amendment proposed

While the bill, therefore, clearly provides an important and useful exception to initial internal disclosure, I do not believe that it goes far enough to facilitate a true anti-corruption culture.

When this issue arose at the Joint Select Committee meeting on July 8, I, therefore, suggested that the offending clause be amended. I suggested that the exception to mandatory internal disclosure as a first step be expanded to include circumstances now provided for under section 8, where the employee believes that if he or she disclosed the matter to his or her employer, (a) he or she might suffer prejudicial treatment, (b) the employer would not investigate the matter properly or (c) evidence might be destroyed or concealed.

In my opinion, as expressed on that occasion and again on public radio on Friday, July 9, such an exception would allow for an appropriate balance to be struck by the statute. It would provide a mechanism to privately address minor matters, malicious allegations or even frivolous ones which could unnecessarily burden already resource-strapped public bodies, or unjustifiably damage individual or corporate reputations without real and practical recourse.

Such an amendment would, therefore, serve to uphold the legal principle that  ocal remedies should generally be exercised first.

It is to be noted that my position has been incorrectly reported more than once. It is, therefore, likely that these errors have also been repeated by anyone discussing the relevant articles. Such reporting errors strengthen my perspective that a balanced approach should be applied to protected disclosures under the bill. I am thankful for the errors in a way, however, as they certainly have stimulated debate on an important national issue which might otherwise have escaped the interest of the public.

Unfortunately, we appear to live in an era where the standard of fact-checking is not always rigorously upheld prior to publishing, and where individual perceptions / selective considerations / allegations are often published as fact rather than opinion. The onus is, therefore, placed on the affected individual to defend his or her reputation or position, but often, to borrow a phrase, "what's done cannot be undone". Reputations can thereby be damaged or misconceptions elevated to the position of "truth" as unquestioned public repetition works its magic on our collective minds.

It is, therefore, important to remember that one of the objects of the bill is to encourage responsible reporting of wrongdoing. It seeks to facilitate reporting, investigation and prosecution of wrongdoers, not gossip and sensationalism. I firmly believe that it, therefore, stands to reason that while the bill must effectively promote the good faith recognition and reporting of wrongdoing, it should similarly discourage irresponsible or bad faith reporting of inaccuracies or unreasonably held beliefs, and constrain the damage that can be caused by publishing same.

Some important facts

I would like to take this opportunity to highlight some relevant facts which should be of interest to all:

• The bill, unlike many in other jurisdictions, covers both public and private sectors and does not exclude charitable organisations or unincorporated bodies of any kind whatsoever.
  
• The definition of an employee is very broad and extends to persons who may just assist an organisation with tasks - there need be no contract of service or employment, or even any remuneration for services.
  
• All employers are mandated to designate someone to receive, investigate and otherwise deal with reports ('otherwise deal' may mean submit to a prescribed body such as the FTC, the DPP, the OCG or any other person where it is felt that the matter might be beyond the scope of the employer's designate), so a report "to an employer" may not mean "the boss" him or herself and may not remain internal if it cannot be appropriately addressed that way.
  
• All employers are mandated to have a procedure for receiving, investigating and otherwise dealing with reports (again this should include referral where appropriate).
  
• Persons who receive a disclosure are mandated to report back to the employee within 30 days of the steps taken to investigate and to provide reasons if no steps have been taken. If the employee does not believe the matter has been appropriately addressed, he/she can then disclose the matter externally.
  
• The bill expressly allows protected disclosures to employers, prescribed bodies (e.g. DPP, Bureau of Standards, OCG, etc), ministers and attorneys-at-law, but does not preclude even broader disclosures, for example to media.
  
• It is an offence under the act to threaten, intimidate or in any way seek to prevent a disclosure from being made, or to punish someone for having made such a disclosure.
  
• These are all very good markers of ways in which whistle-blowing can be facilitated as an agent to reduce wrongdoing in societies. They are all examples of best practices recommended by organisations such as Transparency International, the OAS and the UN. Our bill, which is still a work in progress under review by the Joint Select Committee, has, therefore, started at a point much further ahead than the legislation in place in many other jurisdictions, including both developed and developing nations.

Valid suggestions

Some valid suggestions that have already come from the committee include the implementation of an oversight body to monitor the implementation of the act and the suggested inclusion in the act of guidelines for "whistle-blowing" internal procedures. I support these proposed improvements and look forward to the contributions of the stakeholder bodies scheduled to appear before the committee. They will undoubtedly contribute to the ultimate effectiveness of this bill by lending their views and using their voices to increase awareness.

I continue to believe that the effectiveness of this act will require substantial public education and ultimately a belief by a broad set of stakeholders in the soundness of the legislation and its provisions. It seeks to effect massive cultural transformation, so it will need promotion, broad acceptance and consistent application. Here, as it has been elsewhere, reliance will have to be placed in no small way on unions, employer representatives and the media to ensure that the cultural change sought by the legislation will translate into reality.

From both a personal and policy perspective, I continue to believe that in the matter of this bill and in the broader aspects of sociocultural changes we need, good faith and responsibility will have to be fostered and promoted heavily, while malice, frivolous and vexatious conduct must absolutely not be tolerated. If this is not serious, I don't know what is.

Kamina Johnson Smith is a government senator. Feedback may be sent to columns@gleanerjm.com.