What kind of disclosure is protected?
- disclosed information to the Public Interest Commissioner or a designated officer (i.e. a senior official designated by each chief officer to manage and investigate disclosures under the Act), regarding a wrongdoing in relation to:
- public departments,
- public entities,
- prescribed service providers;
- sought advice or information about disclosing a wrongdoing from: s.8(1)
- their supervisor,
- a designated officer (i.e. a senior official designated by each chief officer to manage and investigate disclosures under the Act),
- the Public Interest Commissioner;
- co-operated in an investigation regarding a wrongdoing ;
- declined to participate in a suspected wrongdoing.
- a contravention of any provincial or federal Act or regulation;
- an act or omission that creates substantial and specific danger to the life, health or safety of individuals or to the environment (although, it does not include a danger that is inherent to the performance or functions of an employee);
- gross mismanagement, including an act or omission that is deliberate and that shows a reckless or wilful disregard for the proper management of public funds, public assets, the delivery of a public service or the culture of the organization;
- a wrongdoing prescribed in the regulations.
Who is eligible for protection?
The protection under the Act extends to employees in the public sector and in some private sectors, as well as prescribed service providers who have disclosed information regarding wrongdoing.
Under the Act, an employee is defined s.1 as:
- an individual employed by a department, a public entity, an office or a prescribed service provider,
- an individual who has suffered a reprisal and is no longer employed by a department, a public entity, an office or a prescribed service provider, or
- an individual or person or an individual or person within a class of individuals or persons, prescribed in the regulations as an individual or person to be treated as an employee for the purpose of this Act or a provision of this Act.
Under the Act, a prescribed service provider is defined s.1 as any individual or any part or all of an organization, body or other person that is determined under the regulations to be a prescribed service provider.
How are whistleblowers protected?
The Act prohibits from taking any kind of reprisal against a person who made a protected disclosure s. 24(2)-(3).
Prohibited reprisals s.24(2)(a)-(c) include:
- a dismissal, layoff, suspension, demotion or transfer, discontinuation or elimination of a job, change of job location, reduction in wages, change in hours of work or reprimand;
- any measure, other than one mentioned in clause (a), that adversely affects the employee’s employment or working conditions;
- a threat to take any of the measures mentioned above.
Any person who knowingly takes a reprisal against a person for having disclosed information regarding a wrongdoing is liable, in the case of a first offence, to a fine of no more than $25,000 and in the case of a second or subsequent offence, to a fine of no more than $100,000 s.49(a)-(b).
Employees will not benefit from whistleblower protection under the Act if they have knowingly made a false statement to designated officers, withheld materials related to an investigation s.46(1)-(2), obstructed an investigation s.47 or destroyed materials s.48.
The identity of persons involved in the disclosure process regarding a wrongdoing will be protected Calgary (City) (Re), 2018 CanLII 30079 (AB OIPC). This protection extends to:
- employees who have made a disclosure;
- employees who have sought information about making a disclosure;
- witnesses interviewed during the investigation of the disclosure
- alleged wrongdoers.
How should disclosures be made?
A public sector employee may make a disclosure of wrongdoing to a designated officer, including a senior official designated by each chief officer to manage and investigate disclosures under the Act, or directly to the Commissioner. The disclosure must be made within two years from the day on which the alleged wrongdoing was committed s.50. The disclosure must demonstrate that the employee had a reasonable belief that the wrongdoing has been or is about to be committed. The disclosure must:
- be made in good faith;
- be made in writing to email@example.com;
- be made in the prescribed form (the prescribed form may be found here);
- must follow the requirements of the Act.
The disclosure must include, if known by the employee, the following information s.13(a)-(f):
- a description of the wrongdoing;
- the names of the individuals involved in the wrongdoing;
- the date of the wrongdoing;
- a copy of the disclosure made to either the designed officer or Commissioner, as well as a copy of any response received in respect of the disclosure of a wrongdoing;
- and any other information the commissioner may reasonably require to carry out the investigation.
Disclosure must not contain the following types of information s.28.1(1):
- information or documents that would disclose the deliberations of the Executive Council or a committee of the Executive Council or the proceedings of any of them,
- information or documents that are protected by solicitor‑client privilege or litigation privilege, or
- any information, document or matter or any class of information, documents or matters prescribed in the regulations as information, documents or matters that must not be disclosed.
For additional information regarding the whistleblowing process following disclosure, please visit the Public Sector Whistleblower Protection Website, the Employee Fact Sheet or the Procedures for Managing and Investigating Disclosures document.