Protecting whistleblowers in Nova Scotia

The idea of employees coming forward to raise concerns about illegal or dishonest activities in a government department or private company is not new. This practice (probably better known as “whistleblowing”) has been taking place for a fairly long time. In the United States, for example, it goes back to at least the 1860s. It has also been quite common in several other countries across the globe for some time.

What is newer is a set of legislated protections to support this practice and to protect any persons engaged in whistleblowing from reprisals. There are such legislated protections in place at the federal level as well as in Manitoba, Saskatchewan, New Brunswick, Ontario, here in Nova Scotia, and come into effect this year in Alberta.

The legislated protections in Nova Scotia are found in a recent piece of legislation called the “Public Interest Disclosure of Wrongdoing Act”. It was first passed as Bill 118 by the Nova Scotia Legislature in December of 2010, and then, proclaimed and brought into effect in December 2011 with the adoption of a few regulations. The full text of the Act can be viewed online at: http://bit.ly/13PM8f3. The regulations that go with it can be found online at: http://bit.ly/15I7Qjz.

The new Act provides for the disclosure of a wrongdoing by a provincial government employee which is broadly defined as a violation of federal or provincial law related to her/his official activities, or the use of public funds or assets, any misuse or gross mismanagement of public funds or assets, any act or failure to act that creates a substantial or specific danger to human health or the environment, or directing or counselling someone to
committing a wrongdoing.

This disclosure has to be made in writing within an employee’s department or to the Ombudsman. It can be made publicly if the employee believes there is an immediate risk to human health or the environment. Any disclosure has to be made within a year of the employee becoming aware of the wrongdoing. An investigation has to be conducted when a disclosure is made, and an annual report has to be made by all departments and by the
Ombudsman of any disclosures.

No reprisals shall be taken against an employee who has made a disclosure such as disciplinary action, demotion or termination of employment, or a threat of such actions. Any employee who feels a reprisal has been taken can lay a complaint with the Labour Board.

Considering that only “Disclosure of Wrongdoing Regulations” and “Disclosure of Wrongdoing Policy” existed prior to the new legislation since 2004, the new Act and Regulations represent a major step forward. The Union was strongly critical of the earlier Regulations and Policy almost from the time they were introduced. We said so in correspondence with the government and publicly in December 2004 before the all-party Human Resources
Committee of the Legislature. We also pushed for a strong set of legislated protections.

It is probably too early to say what impact the new Act and Regulations have had. But it is interesting to note that from 2004-05 to 2007-08, only a few (if any) disclosures were made. That number increased to 15 disclosures
in 2008-09 and again, in 2009-10 and 2010-11 to 23 and 26 allegations respectively.

At the same time, there are still improvements that could be made to the Act, the biggest one of which is to greatly expand the application of the Act to the broader public sector outside of the provincial government as well as to the private sector. We also feel the requirements of having to submit a disclosure in writing and having to do so within a year are too restrictive.

The procedures for internal department investigations need to be further clarified from what is covered by the regulations. There are no binding consequences for the results of an investigation. There should be greater
provision for allowing an employee to make a specific disclosure public outside of an imminent danger to health or the environment. The role of a union or bargaining agent in assisting an employee to make a disclosure should
be recognized.

We welcome your comments and questions about these recent legislated whistleblowing protections.

– Ian Johnson is the NSGEU’s Servicing Coordinator and Policy Analyst.