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Revisiting reprisal: Proposed changes to whistleblower provisions under the Federal Public Servants Disclosure Protection Act

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This summer, the House of Commons Standing Committee on Government Operations and Estimates tabled a 10–year review of the 2007 Public Servants Disclosure Protection Act (PSDPA). The PSDPA protects 400,000 federal government employees from reprisal in situations where they have made a protected disclosure to their employer or are cooperating in an investigation.

This review of the Canadian government’s whistleblower policy is of particular interest to workplace investigators as many internal investigations begin with complaints brought forward by employees who are fearful of facing reprisal for doing so.[1]  Workplace investigators are often tasked with obtaining critical evidence from third-party witnesses who are reluctant to participate without understanding what the repercussions of involvement are on their own employment.

Under the PSDPA, “reprisal” is defined as any disciplinary measure, demotion, termination of employment, or any measure that adversely affects employment or working conditions. The legislation also characterizes a threat to do any of the above as meeting the definition.[2]  The PSDPA goes hand-in-hand with the express duty in the Canada Labour Code placed on all federally-regulated employers, including the federal government, to “ensure that the health and safety of every person employed by the employer is protected.”[3]

The June 2017 report, entitled: Strengthening the Protection of the Public Interest with the Public Servants Disclosure Protection Act (the “Report”) detailed the findings of the Standing Committee after extensive consultation with 52 witnesses from across the federal government as well as from Canadian and international whistleblower experts.

The Report itself demonstrated the delicate balance between protecting the public interest, protecting those employees who bring issues forward, and creating an organizational culture where issues are brought forward and appropriately addressed. One of the primary recommendations of the Report was a legislative change to “explicitly mandate managers and supervisors in federal departments with a duty to protect and support employees who made a disclosure, any person that helped him or her, as well as witnesses and people mistaken as whistleblowers.”

Other key legislative recommendations that came from the Report were to:

  • Expand the definition of “reprisal” to include all acts and omissions which are inconsistent with the duty to protect and support;
  • Provide remedies to ensure that the whistleblower is made whole, and that such remedies do not affect the provision of corrective measures taken against a wrongdoer;
  • Allow for the awarding of reasonable costs to whistleblowers;
  • Provide the Public Servants Disclosure Protection Tribunal with the right to sanction individuals who take reprisals or any form of detrimental action against an employee;
  • Extend the deadline to bring a reprisal complaint to 12 months;
  • Enable those who have suffered reprisals, including federal contractors, to directly access the Public Servants Disclosure Protection Tribunal; and
  • Reverse the burden of proof so that the employer must demonstrate that no reprisals were taken against the whistleblower.

Takeaways for Workplace Investigators

I have found in my investigation practice that some witnesses and parties have a solid understanding of how their involvement may or may not affect their day-to-day employment.  In other situations, employees have simply responded to a ‘request for interview’ and the impact of their involvement is not realized until they are responding to my questions and watching me take diligent notes. For this reason, I always bring a copy of the relevant policy and provide the contact information for the person within the organization who is better served to answer policy-type questions.

Generally speaking, most internal harassment or violence policies contain provisions that protect employees in the process against being adversely treated as a result of their participation in an investigation process. There are also legislated protections against this type of retaliatory treatment.[4]

As workplace investigators, we are often conducting investigations within a larger legislative or policy scheme. It is important to understand the rights, obligations and protections that have been provided to those who are participating in the investigation process. Having a thorough read of the applicable policies prior to conducting interviews will help investigators understand the framework that has resulted in somebody sitting across the table answering questions. This knowledge, in turn, will create the conditions for the best possible collection of evidence.

Jennifer White

About the Author: Ottawa-based lawyer Jennifer White has extensive experience in police labour relations and harassment issues.  Jennifer conducts workplace investigations into allegations of harassment and workplace violence, code of conduct violations, bullying, poisoned work environments, and other problematic workplace behaviour. Jennifer also provides workplace investigation and human rights training to staff at all levels.

[1] For examples of harassment investigations under the PSDPA, it is worthwhile to read the Public Sector Integrity Commission decisions from February, 2017, which found that harassment had occurred in two federal government departments: the Canadian Food Inspection Agency and the Public Health Agency of Canada.

[2] Paragraph 2(1) of the PSDPA.

[3] Section 124 of the Canada Labour Code.

[4] In Ontario, for example, retaliation is addressed in Section 50 of the Occupational Health and Safety Act, which prohibits employers from taking action against workers who are seeking to enforce the Act or for acting in compliance with the Act.