Labour decision sobering reminder about limits of federal whistleblower protection
January 8, 2020 By: Karine Dion Read Time: 3 minutes
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Nelligan O’Brien Payne gratefully acknowledges the contribution of Kris Ade, Student-at-Law, in writing this blog post.

In August 2019, the Federal Public Sector Labour Relations and Employment Board released its decision in the firing of an employment insurance (“EI”) fraud investigator who leaked confidential information to the media.

In Therrien v Deputy Head (Department of Employment and Social Development), Ms. Therrien sought to have her termination revoked on the grounds that she blew the whistle on government wrongdoing covered by the Public Servants Disclosure Protection Act (PSDPA). The Board disagreed, providing a sobering reminder about the limits of federal whistleblower protection.

Facts

Ms. Therrien was a Service Canada employee who investigated possible fraud in employment insurance claims. She noted overpayments, recommended penalties, and made recommendations to accept or reject claims.

Ms. Therrien was a Service Canada employee who investigated possible fraud in employment insurance claims.

In 2013, she sent confidential internal policy documents to a Montreal newspaper, revealing that employees’ performance (including her own) was measured based on savings generated per month. It also revealed that her office and others in her region had certain savings objectives. The newspaper published a series of stories based on Ms. Therrien’s disclosures, which included her comments, attributed anonymously, about being under intense pressure to meet monthly targets.

Following these newspaper publications, Ms. Therrien’s employer strongly suspected that she was the source of these leaks and suspended her without pay for nearly 8 weeks while investigating the matter. Service Canada concluded Ms. Therrien leaked the documents, contrary to her duties of loyalty and confidentiality to the public service and that her actions were not whistleblowing. She was terminated for cause.

Whistleblower Protection Under the PSDPA

The PSDPA protects public servants who disclose “wrongdoings” in good faith, including:

  • a contravention of any Act of Parliament or of the legislature of a province, or of any regulations made under any such Act, other than a contravention of section 19 of the PSDPA, which addresses reprisal, discussed below;
  • a misuse of public funds or a public asset;
  • a gross mismanagement in the public sector;
  • an act or omission that creates a substantial and specific danger to the life, health or safety of persons, or to the environment, other than a danger that is inherent in the performance of the duties or functions of a public servant;
  • a serious breach of a code of conduct established under section 5 or 6; and,
  • knowingly directing or counselling a person to commit a wrongdoing set out in any of paragraphs (a) to (e).

Additionally, public sector employers are prohibited from reprising against public servants for making such disclosures. Reprisals include a disciplinary measure, demotion, termination of employment, any measure that adversely affects their employment or working conditions, and a threat to take any of the previously mentioned measures.

Whistleblower Protections did not Apply to Ms. Therrien

The Board upheld Ms. Therrien’s termination and confirmed that her conduct did not amount to whistleblowing, which would have otherwise afforded her the PSDPA protections discussed above.

Ms. Therrien relied on the Supreme Court of Canada’s decision, Fraser v PSSRB, where the court ruled that disclosures may be justified if they jeopardize the life, health or safety of public servants or others. The Board rejected this argument since the purpose of the Fraser exceptions to the duty of loyalty is to allow public servants to expose government wrongdoing in exceptional circumstances.

Ms. Therrien further argued that her complaints about the policies to her supervisors had gone nowhere and the leaked documents were in the public interest. The Board also rejected these claims due to lack of evidence and because Ms. Therrien failed to demonstrate that she had raised her concerns internally beyond one complaint, which had been dismissed for being unfounded. Further, the Board noted that “legitimate public concern” is not a recognized exception to the duty of loyalty.

Conclusion

By leaking confidential internal government documents and speaking critically about her employer to the media without authorization, Ms. Therrien did in fact breach her duty of loyalty to her employer.

It is generally best to seek legal advice before making an unauthorized public disclosure. A knowledgeable employment lawyer from our Employment Law Group can provide critical advice to someone who is considering whether to blow the whistle on their employer.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2020 Nelligan O’Brien Payne LLP.

Service: Employment Law

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