ARCHIVED - Policy on the Internal Disclosure of Information Concerning Wrongdoing in the Workplace - Archived

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Preamble

Consistent with the democratic traditions and values of Canadians, our Governments are elected by citizens to define and to serve the public interest. Employees of the Government of Canada play an important role in ensuring that the democratic framework of our society is upheld by serving the duly elected government with neutrality. In this way, public servants play a fundamental role in serving the public interest.

Public servants owe a duty of loyalty to their employer. In serving the public interest, they are entrusted, as a fundamental part of their duties, with access to a wide range of government information and are required to treat this information responsibly and with discretion and integrity.

Public servants also serve the Government and the public interest by providing professional and neutral advice in a manner that is consistent with Public Service values and ethics. Accordingly, when an employee has reasonable grounds to believe that another person has committed a wrongdoing in the workplace, he/she should be able to disclose this information through clearly defined processes with confidence that he/she will be treated fairly and protected from reprisal.

It is recognized that deputy heads are responsible for making decisions which involve weighing the risks and benefits of various courses of action and selecting approaches which they consider to be in the best public interest, including some that carry with them a risk. The judgement call that results from a balanced and informed decision-making process would not be considered a wrongdoing within the scope of this policy.

With this policy, deputy heads are responsible to put in place internal mechanisms to allow employees to disclose, in good faith, information concerning wrongdoing within their organisations; to ensure that these disclosures are addressed in an appropriate and timely fashion; and to ensure that employees who disclose information are treated fairly and protected from reprisal.

This policy emphasizes the responsibility of deputy heads and managers to promote a culture of open communication where issues and concerns can be dealt with in normal interaction, but also provides an alternative when one is needed. As such, deputy heads have the responsibility to put in place internal mechanisms (e.g. the designation of a Senior Officer in the department) where an employee may turn to disclose information concerning wrongdoing in the workplace.

The policy also establishes a government-wide review mechanism outside the departmental processes where employees, who, having unsuccessfully exhausted departmental mechanisms, may turn to disclose information concerning wrongdoing.

The processes so established will allow employees to deal with the vast majority of instances of wrongdoing. However, in certain exceptional circumstances an employee might be justified in making an external disclosure: for example, when there is an immediate risk to the life, health or safety of the public. Employees might be also justified in making an external disclosure where they have exhausted all internal procedures. As any unauthorised external disclosure could expose the employee to disciplinary action, it is recommended that an employee obtain advice or assistance from his or her union, trusted adviser or independent counsel before taking action.

Effective date

The effective date of this policy is November 30th, 2001. The policy was revised to expand the definition of wrongdoing to incorporate a breach to the Values and Ethics Code for the Public Service effective on September 1st, 2003. A provision approved March 8, 2004, retroactive to February 10, 2004, ensures protection from reprisal for public servants who provide information and testimony in good faith in the course of a parliamentary proceeding or an inquiry under Part I of the Inquiries Act related to the 2003 Report of the Auditor General.

Policy objective

To allow employees to bring forward information concerning wrongdoing, and to ensure that they are treated fairly and are protected from reprisal when they do so in a manner consistent with this policy.

Definitions

Disclosure (divulgation) - is defined as information raised within the organization in good faith, based on reasonable belief, by one or more employees concerning a wrongdoing that someone has committed or intends to commit.

Duty of loyalty (devoir de loyauté) - refers to the commitment of employees to fulfil their duties faithfully and honestly and not to disclose confidential information unless authorized to do so.

Responsible use of information (utilisation responsable d'information) - is defined as use of information that:

• shows proper concern for its accuracy and for the legitimacy of how the information is acquired; and
• shows proper concern for its protection and authorised disclosure in accordance with the Government Security Policy and other relevant policies that exist or may be adopted.

Wrongdoing (actes fautifs) - is defined as an act or omission concerning:

1. a violation of any law or regulation; or
2. a breach of the Values and Ethics Code for the Public Service; or
3. misuse of public funds or assets; or
4. gross mismanagement; or
5. a substantial and specific danger to the life, health and safety of Canadians or the environment.

Application

This policy applies to all departments and organizations of the Public Service listed in Part I, Schedule I, of the Public Service Staff Relations Act.

Responsibility and authority

The primary responsibility and authority for applying this policy rests with the deputy head.

Policy requirements

Responsibilities of Deputy Heads

Deputy heads must:

1. ensure that employees understand the requirement to use government information responsibly;
2. promote a culture of open communication within their organisations where issues and concerns can easily be dealt with in the normal interaction between employees and their managers;
3. establish internal mechanisms to manage the disclosure of wrongdoing, including – at a minimum – a designated Senior Officer, who will be responsible for receiving and acting on such disclosures. This Senior Officer will report directly to the deputy head on matters related to this policy but could report to another manager for administrative purposes and could be involved in other responsibilities within the organization.

   (Note: Departments which already have in place internal mechanisms to administer the disclosure of wrongdoing should ensure that they do meet the requirements of this policy while others might want to take additional measures to respond to their specific mandate or organisational requirements.);

4. inform all employees of this policy, including the name, location and phone number of the Senior Officer who will be responsible for receiving and acting on disclosures;
5. ensure that disclosures are reviewed in a timely fashion and investigated when required, and that prompt, appropriate action is taken to correct the situation; and
6. protect from reprisal the employees who disclose wrongdoing in good faith.

Responsibilities of Employees

Employees are responsible for:

1. using government information responsibly and in good faith in accordance with their duty of loyalty;
2. following the internal processes established to raise instances of wrongdoing in the workplace; and
3. respecting the reputation of individuals by not making trivial or vexatious disclosures of wrongdoing or, by making disclosures in bad faith.

Employees should also be aware of their responsibilities under the various policies and laws, for example the Criminal Code, the Government Security Policy, the Values and Ethics Code for the Public Service, the Conflict of Interest and Post-Employment Code for the Public Service, the Policy on Losses of Money and Offences and Other Illegal Acts Against the Crown.

Responsibilities of Managers

Managers are responsible for:

1. informing their employees of this policy;
2. ensuring that their employees understand the requirement to use government information responsibly;
3. ensuring that their employees are aware of the processes available to them if they wish to disclose information concerning wrongdoing under this policy;
4. promoting openness in their interaction with employees;
5. acting promptly when information concerning wrongdoing is brought to their attention; and
6. protecting from reprisal the employees who disclose wrongdoing in good faith.

Responsibilities of the Senior Officer

The Senior Officer shall be responsible for:

1. disseminating information on this policy, providing interpretation and related advice;
2. receiving, recording and reviewing disclosures of information concerning wrongdoing, establishing if there are sufficient grounds for further action and;
3. ensuring that prompt action is taken in all cases;
4. ensuring that procedures are in place to manage disclosures that require immediate or urgent action;
5. initiating investigations when required, reviewing and reporting the results of the investigations and making recommendations to the deputy head;
6. ensuring that the privacy rights of both parties, the employees making the disclosure and the employees implicated or alleged to be responsible for the wrongdoing, are respected;
7. establishing adequate procedures to ensure that the protection of the information and the treatment of the files are in accordance with the Privacy Act and the Access to Information Act;
8. maintaining information on the number of disclosures received, rejected, accepted; completed without investigation, of disclosures investigated; of disclosures still under consideration or investigation; and
9. preparing an annual report to the deputy head.

As a minimum, the annual report should cover the number of general inquiries and advice; the number of disclosures received from employees and their status (e.g. rejected, accepted, completed without investigations, still under consideration); the number of disclosures investigated, completed, still under consideration.

Refer to Appendix A for information on the Internal Disclosure and Resolution Process.

Responsibilities of the Office of Values and Ethics of the Treasury Board Secretariat

The Office of Values and Ethics will:

1. provide policy support and interpretation to deputy heads and departmental Senior Officers;
2. provide advice and assistance to the departmental Senior Officers on the handling of disclosures of information concerning wrongdoing, as required; and
3. review the efficiency of mechanisms established in departments for the internal disclosure of information concerning wrongdoing.

Responsibilities of the Public Service Integrity Officer

The mandate of the Public Service Integrity Officer is to act as a neutral entity on matters of internal disclosure of wrongdoing. In particular, he or she assists employees who:

• believe that their issue cannot be disclosed within their own department; or
• raised their disclosure issue(s) in good faith through the departmental mechanisms but believe that the disclosure was not appropriately addressed.

As such, the responsibilities of the Public Service Integrity Officer are:

1. to provide advice to employees who are considering making a disclosure;
2. to receive, record and review the disclosures of wrongdoing received from departmental employees and/or the requests for review submitted from departmental employees;
3. to establish if there are sufficient grounds for further action and review;
4. to ensure that procedures are in place to manage instances of wrongdoing that require immediate or urgent action;
5. to initiate investigation when required, to review the results of investigations and to prepare reports, and to make recommendations to deputy heads on how to address or correct the disclosure;
6. in some special cases or in cases when the departmental responses are not adequate or timely, to make a report of findings to the Clerk of the Privy Council in his role as head of the Public Service;
7. to establish adequate procedures to ensure that the protection of the information and the treatment of the files are in accordance with the Privacy Act and the Access to Information Act;
8. to protect from reprisal employees who disclose information concerning wrongdoing in good faith;
9. to monitor the type and disposition of cases brought to the attention of the Public Service Integrity Officer; and
10. to prepare an annual report to the President of the Privy Council on his or her activities for tabling in Parliament.

As a minimum, the annual report should cover the number of general inquiries and advice; the number of disclosures received directly from departmental employees and their status (e.g. rejected, accepted, completed without investigation, still under consideration); the number of disclosures investigated, completed, still under consideration. The same data would be provided in relation to requests for review. The report could include an analysis of the categories of disclosures and recommendations to improve the processes.

See Appendix B for information on the Public Service Integrity Officer Disclosure and Review Process.

Administrative and disciplinary measures

In respect to the application of this policy, employees and managers may be subject to administrative and disciplinary measures up to and including termination of employment, when they:

1. retaliate against another employee who has made a disclosure in accordance with this policy or against an employee who was called as a witness; and/or
2. choose to disclose in a manner that does not conform to this policy and its procedural requirements.

Any administrative or disciplinary measures are to be taken in consultation with departmental Human Resources Services and Legal Services.

Protection from reprisal

Except in circumstances stated directly above, no employee shall be subject to any reprisal for having made a good faith disclosure in accordance with this policy, or in the course of a parliamentary proceeding or an inquiry under Part I of the Inquiries Act related to the 2003 Report of the Auditor General of Canada. This includes employees who may have been called as witnesses. Reprisal may include any administrative and disciplinary measures.

Employees who believe they are subject to reprisal as a direct consequence of having made a disclosure in accordance with this policy may complain to the Senior Officer or to the Public Service Integrity Officer in the case where the original disclosure was made directly to the Public Service Integrity Officer. The Senior Officer or the Public Service Integrity Officer will review the matter following basically the same process as a disclosure (see Appendix A or B). Employees may also resort to other existing redress procedures , for example those under the Public Service Staff Relations Act and the Treasury Board Policy on the Prevention and Resolution of Harassment in the Workplace.

Confidentiality

Confidentiality, within the intent of this policy, is subject to the provisions of the Privacy Act and Access to Information Act. The Senior Officer and the Public Service Integrity Officer will explain the parameters of confidentiality employees can expect when they make a disclosure. The Senior Officer and the Public Service Integrity Officer are also available to provide information on the policy and to give informal advice to assist employees who are considering making a disclosure. Employees should feel free to consult them in confidence.

Disclosure of any information concerning criminal activity or action should be referred to proper authorities for investigation in accordance with the Policy on Losses of Money and Offences and Other Illegal Acts Against the Crown. Confidentiality in such circumstances will be subject to the applicable regime.

Monitoring

The Office of Values and Ethics will verify that all departments and organizations have in place, on the effective date of this policy, internal disclosure mechanisms.

Treasury Board Secretariat, departments and organizations will work together to monitor the activities and the results in achieving the objectives of this policy.

Policy review

This policy will be evaluated no later than three years after implementation.

References

Access to Information Act

Canadian Human Rights Act

Canadian Charter of Rights and Freedoms

Case law:

Values and Ethics Code for the Public Service

Conflict of Interest and Post-Employment Code for the Public Service

Criminal Code

Financial Administration Act

Government Security Policy

Inquiries Act

Official Secrets Act

Policy on the Prevention and Resolution of Harassment in the Workplace.

Policy on Losses of Money and Offences and Other Illegal Acts Against the Crown

Privacy Act

Public Service Employment Act

Public Service Staff Relations Act

Public Service Terms and Conditions of Employment Regulations

Treasury Board Manual – Chapter 4 (Grievance Procedures) and Chapter 6 (Discipline) of the Volume on "Staff relations"

Inquiries

Please refer inquiries about this policy to the Senior Officer in your department, who in turn may direct questions about policy interpretation to the Office of Values and Ethics of the Treasury Board Secretariat.

Inquiries about disclosures that cannot be disclosed within the department and inquiries about the review process by the Public Service Integrity Officer should be referred to the Public Service Integrity Officer.

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Appendix A – Departmental/organizational internal disclosure and resolution process

Employees who become aware that a wrongdoing has been committed or will be committed should first attempt to raise the matter using the usual reporting relationship. If that has not been successful or if that was not possible, employees may communicate with their Senior Officer responsible for administering such disclosures.

The Senior Officer is available to provide information on this policy and to provide informal advice to employees who are considering making a disclosure. He will also explain the parameters of confidentiality the employees can expect when they make a disclosure.

An employee who comes to seek advice or to make a disclosure can be accompanied by another person such as a union representative, a friend, a peer, etc.

What follows is the basic process that will be followed when an employee decides to disclose information concerning wrongdoing. Each step should be completed promptly. All steps should normally be completed within six months or less. The nature of certain disclosures might require very prompt, sometimes immediate, action.

Step 1 – Disclosure of wrongdoing

The employee should disclose the information to the Senior Officer, preferably in writing. The disclosure must include the nature of the wrongdoing, the name of the person alleged to have committed the wrongdoing; the date and description of the wrongdoing; and other pertinent information. The information should be as precise and concise as possible.

Step 2 – Screening and review of a disclosure

The Senior Officer will review the information and determine if there are sufficient grounds for further action. The disclosure may be rejected if it is determined that it is trivial and vexatious; fails to allege or give adequate particulars of a wrongful act, or if it is determined that it was not given in good faith or on the basis of reasonable belief.

The Senior Officer may also decline to review a disclosure if it is determined that the matter could be dealt with more appropriately by means of a procedure provided for under another Treasury Board policy or law in force in Canada (e.g., Policy on the Prevention and Resolution of Harassment in the Workplace or existing redress procedures under the Public Service Staff Relations Act.). Alternatively, the Senior Officer may choose, following consultation with the employee, to deal with the disclosure while the other procedure is in progress or, deal with the disclosure while the other procedure is held in abeyance.

The disclosure of any criminal activity should be dealt with in accordance with the Policy on Losses of Money and Offences and Other Illegal Acts Against the Crown.

The Senior Officer will inform the employee in writing of whether he/she will proceed further. If the Senior Officer decides to proceed further, he/she will decide, from the nature and particulars of the wrongdoing what are the most appropriate next steps, which include attempt at resolution and/or investigation.

Step 3 – Attempt at resolution

It is expected that most situations will be addressed by discussing the matter with the employees concerned, identifying avenues of resolution and taking appropriate action.

Step 4 – Investigation

If the matter cannot be resolved, the Senior Officer may initiate an investigation.

The Senior Officer may decide to investigate right after the preliminary review of the disclosure.

Step 5 – Decision

The Senior Officer will prepare a report, including recommendations, for the deputy head. The deputy head shall review the Senior Officer 's recommendations and make a decision.

As a result of the deputy head's decision, the Senior Officer will inform the parties in writing of the outcome of the investigation. When required, corrective measures will be taken.

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Appendix B – Public service integrity officer disclosure and review process

Normally, employees should initiate their disclosure of wrongdoing using the internal disclosure mechanism within their organisation. In some cases, however, when they believe that their issue could not be raised in confidence within their organisation, employees may make their disclosure of wrongdoing directly to the Public Service Integrity Officer. Employees may also contact the Public Service Integrity Officer when they have disclosed an incident of wrongdoing by means of the departmental mechanisms and believe that their disclosure was not reviewed and/or investigated adequately.

In these cases employees should get in touch with the Public Service Integrity Officer in order to discuss how to proceed.

A. Disclosure of wrongdoing could not be raised within the department

Each step should be completed promptly. All steps should normally be completed within six months or less. The nature of certain disclosures might require very prompt, sometimes immediate, action.

Step 1 – Disclosure of wrongdoing

The Employees should provide the following information, preferably in writing:

• the nature of the wrongdoing;
• the name of the person(s) alleged to have committed the wrongdoing; and
• the date and description of the wrongdoing and any other relevant information.

The information should be as much precise and concise as possible. Employees should also provide their name, phone number and address so the Public Service Integrity Officer may contact them for more information.

Step 2 – Screening and review of a disclosure

The Public Service Integrity Officer will review the information, consult the employee when required and determine if the matter should be pursued further. The Public Service Integrity Officer may reject the disclosure of wrongdoing if it is determined that:

• the employee should try first to resolve the matter using the departmental mechanisms provided for under this policy;
• the matter is trivial, frivolous or vexatious;
• the disclosure of wrongdoing fails to allege or give adequate particulars of a wrongful act; or
• the disclosure of wrongdoing was not given in good faith or on the basis of reasonable belief or was found unfounded.

The Public Service Integrity Officer may also decline to review a disclosure if it is determined that the matter could be dealt with more appropriately by means of a procedure provided for under another Treasury Board policy or law in force in Canada (e.g., the existing redress procedures under the Policy on the Prevention and Resolution of Harassment in the Workplace or under the Public Service Staff Relations Act). Alternatively, the Public Service Integrity Officer may choose, following consultation with the employee, to deal with the disclosure while the other procedure is in progress or, deal with the disclosure while the other procedure is held in abeyance.

There might be circumstances where the Public Service Integrity Officer will need to discuss the matter with the department.

The disclosure of any alleged criminal activity should be dealt with in accordance with the Policy on Losses of Money and Offences and Other Illegal Acts Against the Crown.

The Public Service Integrity Officer will inform the employee in writing of whether or not they will proceed further. The Public Service Integrity Officer will also inform the deputy head of the department.

Step 3 – Attempt at resolution

It is expected that most situations will be addressed by discussing the matter with the employees concerned, identifying avenues of resolution and taking appropriate action.

Step 4 – Investigation

If the matter cannot be solved, the Public Service Integrity Officer may initiate an investigation.

The Public Service Integrity Officer may decide to investigate right after the preliminary review of the disclosure.

Step 5 – Report

The Public Service Integrity Officer will review the results of the investigation and prepare a report, including recommendations to the deputy head. The report will be sent to both the deputy head and the employee who raised the disclosure of wrongdoing. The Deputy head shall review the Public Service Integrity Officer's recommendations and make a decision.

B. Request for review after employees have raised their issues within their department

Employees who disclosed wrongdoing (or raised their issues of wrongdoing) by means of the departmental mechanisms and believe that their disclosure was not adequately reviewed and/or investigated, may make a request to the Public Service Integrity Officer for a review of the departmental decision.

In these cases, employees should submit in writing their request, specifying:

1. the details of the wrongdoing, e.g. the nature of the wrongdoing, the name of the person(s) alleged to have committed the wrongdoing;
2. the date and description of the wrongdoing and any other pertinent information, if applicable;
3. a description of the process followed by their department; the reason(s) why the employee believe it was not adequately reviewed and/or investigated by the department; and
4. his/her name, address and phone number so the Public Service Integrity Officer can contact him/her for more information.

The Public Service Integrity Officer will review the information and inform the employee in writing of whether they will proceed further in accordance with the procedures outlined in section A of this appendix.

Each step should be completed promptly. All steps should normally be completed within six months or less. The nature of certain disclosures might require very prompt, sometimes immediate, action.

Appendix C – Process to be followed by an employee who becomes aware of a wrongdoing

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