Public Interest Disclosure and Whistleblower Protection Act

Overview

The Public Interest Disclosure and Whistleblower Protection Act (S.N.L. 2014, c. P-37.2) protects public sector employees who have disclosed a wrongdoing, in writing, to the Citizens Representative. The Act also protects employees against reprisals for making a disclosure, seeking advice, or cooperating with the Citizen’s Representative.

What kind of disclosure is protected?

The Act protects any public sector employee who, while acting in good faith and on the basis of reasonable belief, has disclosed in writing s.2(f), to the Citizen’s Representative information regarding a wrongdoing committed or about to be committed by a member of the public sector s.7.

Under the Act, a wrongdoing s.4 is defined as:

  • an act or omission constituting an offence under a Parliamentary Act or a regulation made under an Act;
  • 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 an employee;
  • gross mismanagement, including of public funds or a public asset; and
  • knowingly directing or counseling a person to commit a wrongdoing described above.

Any employee who is considering the possibility of making a disclosure may request, in writing, advice from the Citizen’s Representative s.6.

Who is eligible for protection?

In order to benefit from protection, a disclosure must be in writing, must be signed by the employee of a public service and must include the following information s.8:

  • a description of the wrongdoing;
  • the name of the person alleged to have committed the wrongdoing, or about to commit the wrongdoing;
  • the date of the wrongdoing; and
  • whether the wrongdoing has already been disclosed and a response received.

The identity of an employee making a disclosure shall be kept confidential to the extent permitted by law and consistent with the need to conduct a proper investigation s.7(2). In addition, the public sector employee must take reasonable precautions to ensure that no more information is disclosed than necessary if the disclosure involves confidential information s.11

Disclosures by current or former public servants regarding the deliberations of the executive council or information protected by solicitor-client privilege is strictly prohibited under the Act s.11(1)

A public servant will not be protected under the Act if he or she has made a disclosure in bad faith, or if the disclosure is frivolous or vexatious. In fact, he or she will be subject to disciplinary action, which may include termination of employment s.27. Any person who knowingly falsified, obstructs or destroys anything related to a disclosure or an investigation is guilty of an offence and liable to a fine up to $10,000 s.24.

How are whistleblowers protected?

The Act protects any employee who has made a protected disclosure, sought advice about making a disclosure or has cooperated in an investigation regarding a disclosure against any kind of reprisal s.21

Any person who takes a reprisal against an employee for a protected disclosure is subject to disciplinary action s.21 and may be ordered to do any of the following: 

  • the complainant be permitted to return to his or her duties;
  • the complainant be reinstated or damages be paid to him or her, where the board considers that the trust relationship between the parties cannot be restored;
  • compensation be paid to the complainant in an amount not greater than the remuneration that the board considers would, but for the reprisal, have been paid to the complainant;
  • an amount be paid to the complainant equal to the expenses and other financial losses that the complainant has incurred as a direct result of the reprisal;
  • the activity that constitutes the reprisal cease;
  • the situation resulting from the reprisal be rectified; and
  • a person do or refrain from doing any thing in order to remedy a consequence of the reprisal s.22.

How should disclosures be made?

Be careful! Despite presenting some challenges for follow ups, one of the best protections for whistleblowers is their anonymity. Be cautious when providing any information through electronic means, especially emails! Read the security tips section.

In order to benefit from protection, a disclosure must be made in writing in the prescribed form and sent to the Citizen’s Representative by mail at the address below:

Office of the Citizens’ Representative
4th Floor, Beothuck Building
20 Crosbie Place
St. John’s, NL A1B 3N7

File the disclosure in a timely manner. While there are no strict time limits in the Act for filing a disclosure, the Citizens’ Representative can decline to investigate a matter if he or she is of the opinion that too much time has elapsed between the date when the subject matter of the disclosure arose and the date when the disclosure was made to the Citizens’ Representative.

Allegations that are given anonymously may not be investigated if the particulars are insufficient. If an employee is considering anonymous disclosure, speak with an investigator about the positive and negative aspects of anonymous disclosure.