Canadian Safety Reporter

CANADIAN SAFETY REPORTER Understanding Alberta's new whistleblower legislation Law encourages employees to speak up and mandates strict oversight of employer's response Question: What does Alberta's new whistleblower legislation mean for employers in the province? Answer: On June 1, 2013, the Public Interest Disclosure (Whistleblower Protection) Act came into effect, Alberta's first ever whistleblower legislation. It is intended to protect employees in the public sector who act as "whistleblowers" — employees who disclose misdeeds of their employers — by disallowing employer retaliation. The  act, spurred on by an increasing desire for government transparency, reflects similar changes to laws passed over the past two decades in the United States and the Commonwealth. The act applies to public sector entities. This includes government organizations, offices of the legislature, all employees of Alberta Public Service, public entities in the education sector (including public school boards, private schools receiving public funding, charter schools and  designated postsecondary academic institutions), public entities in the health sector including Alberta Health Services and all of its subsidiaries, and certain provincial entities defined under the  Financial Administration Act, such as the Alberta Securities Commission and the Alberta Gaming and Liquor Commission. Under the act, the affected public sector bodies are required to appoint a designated officer at their organization to investigate and resolve employee complaints regarding three areas of corporate conduct. This includes violations of provincial or federal law, acts or omissions that create a danger to the public or environment, and gross mismanagement of public funds. An employee who "whistle blows" in good faith must be held free from corresponding "reprisal" (or threat thereof), pursuant to section 24 of the gations and issuing reports at his own discretion. Effect on public sector whistleblowers GEOFF HOPE ASK AN EXPERT act. "Reprisal" is defined as all employer actions that adversely affect the employee's employment or working conditions, and includes actions such as dismissal, demotion and reprimand. Any person that takes reprisal action against the employee or obstructs, falsifies, conceals or destroys information throughout the investigation, will be found guilty of an offence and liable to a maximum fine of $25,000 for the first violation and $100,000 for each subsequent violation. Reprisal action can lead to a $25,000 fine for the first violation, $100 for each subsequent violation. To ensure accountability, the act also engages the newly established Office of the Public Interest Commissioner as a place of "last resort." An employee is permitted to bring a complaint directly to the commissioner in specific circumstances, including where in-house resolution is unsuccessful, where harm to people or the environment appears imminent and where the employee believes job reprisal is likely to result or has already occurred. The commissioner is also permitted to take initiative by conducting investiCanadian HR Reporter, a Thomson Reuters business 2013 The impact of this new legislation on public sector whistleblowers is not yet known. Some criticisms have included the following: the act does not go far enough to protect employees, it contains no remedies for the actual whistleblowers who suffer reprisals (as opposed to sanctions against the employer), there is no mechanism to challenge the commissioner's decisions and the commissioner's work and actions can remain secret forever. The Alberta government has suggested such criticism is premature and because the commissioner has the power to issue a report whenever he deems necessary, the act is going to be rigorously applied. While all of this remains to be seen, the legislation at the very least can be said to establish clear legislative guidelines and avenues for whistleblowers, and sanctions for their public sector employers, where few formally existed before. Effect on public sector organizations The impact on public sector organizations is twofold: It encourages employees to speak up and it mandates strict oversight of the employer's response. Of particular note is the wide amount of discretion granted to the commissioner. No matter the internal officer's decision, it is possible the commissioner will unilaterally choose to involve himself in the investigation.  Beyond simply implementing the required internal systems to handle complaints, public sector organizations are well-advised to ensure all organization members understand that any adverse Continued on page 12 11

• Cover