Whistleblowers: Is temporary protection from retaliation any protection at all?

Whistleblowers: Is temporary protection from retaliation any protection at all?

Protection from Retaliation and Reprisal - It is Not a New Thing

Employers wishing to provide a safe environment where employees can raise concerns could learn from:

  • union security concepts and
  • other industrial relations learnings.?

Learnings from Union Security

Union security is the degree of protection a union has against losing its rights and privileges in the workplace. One of the most critical aspects of union security is the protection of union representatives, such as job stewards, who act as the voice and advocate of the workers.

An early experience as a labour relations practitioner was assisting a senior negotiator during a collective bargaining session. The union wanted to secure a stronger (almost absolute) layoff protection clause, ensuring that the job steward would be the last to be laid off in case of workforce reduction. The Employers were not willing to accept such a provision. However, as the discussion progressed, the union revealed that being a job steward was not desirable and that they had trouble finding and retaining members for that role. Job stewards on their negotiating committee also expressed their wish to avoid being stuck in that role forever. The employer seized this opportunity and offered a counter-proposal: they would agree to the absolute layoff protection if the union agreed to appoint job stewards on a temporary, rotating basis. This caught the union off guard, realizing the implications of where the proposal was going. They quickly withdrew their demand and settled for the existing language.

The union recognized that a job steward who advocated for their members could be easily laid off once their assignment was over, and that temporary protection was no protection at all.

Job stewards are essential for ensuring that the collective agreement is respected and enforced, that grievances are handled properly, and that workers are informed and educated about their rights and responsibilities. Job stewards also play a crucial role in promoting solidarity and unity among workers and fostering a workplace culture of respect and dignity. Job stewards face many challenges and risks in their role, such as being targeted by management for retaliation, harassment, or discrimination. Therefore, they need strong support and protection from their union and employer.

One way to protect job stewards is to grant them layoff protection, which means they cannot be laid off for reasons other than with cause. This ensures that job stewards can perform their duties without fear of losing their jobs or income. Layoff protection also prevents employers from using layoffs as a tool to weaken or eliminate the union's presence in the workplace. Layoff protection is a common feature of many collective agreements. It is recognized as a legitimate and reasonable form of union security.

Protecting Whistleblowers from Reprisal

Whistleblowers are employees who expose wrongdoing, fraud, corruption, or illegal activities within their organizations. They are vital in ensuring accountability, transparency, and integrity in the public and private sectors. However, whistleblowers face retaliation, harassment, discrimination, or termination for speaking up. This is unjust, unethical, and detrimental to organizational culture, performance, and reputation.

Employers who set a pattern of terminating or exiting people from the organization after they raise such concerns demonstrate a profound failure of governance at the highest levels.

Such behaviour would have to be sanctioned, initiated by executive levels of leadership and supported by unethical human resources departments lacking leadership who have lost their way. There is no further violation of trust, especially with impacted equity-deserving groups caught in this toxic crossfire.

Under such circumstances, the leadership under which this was allowed to occur is incapable of restoring that trust.?An organization cannot, on the one hand, invite individuals to raise concerns while, on the other hand, have a clear track record of firing those people who do.

The violation of trust is irreparable, and the only way to restore the trust is to exit the senior leaders involved.

A Page from Modified Duties and Duty to Accommodate

This immature premise that whistleblowers are only protected during the timeframe of their investigation and then may be exited immediately afterwards is analogous to how some unscrupulous employers used to handle WCB or duty to accommodate files.?

While on a construction site, I encountered a quite physical employee. He worked out and was incredibly fit. He liked to exert himself, and when torquing a piece of equipment, he gave it a little too much "heave-ho" and injured himself with a hernia. When speaking with him, I assured him we would accommodate him and that he had our support. He was reluctant and somewhat untrusting. When I asked him why he said he didn't want to be on the "shit list." "The shit list?" I asked (they don't teach you about shit lists in university). He said it was widely known in the industry that many employers would wait until a person returned to full duty following modified work, and then they would be the next person laid off. I was disgusted with members of my profession and handled his file directly and properly, refusing to delegate it.

A Common Thread

What is common about union security, whistleblower protection and modified work protections?

Temporary protection from reprisal is no protection at all.?

Courts, arbitrators, and human rights commissions encountering such files must set profound examples of employers demonstrating this behaviour.?

What do Good Employers Do?

Therefore, employers must adopt and implement effective policies and practices to protect whistleblowers from retaliation.?

This includes:

  • Creating a culture of openness and trust where employees are safe and encouraged to report concerns without fear of reprisal.
  • Establishing clear and accessible channels for reporting wrongdoing, such as hotlines, ombudspersons, or external agencies.
  • Providing adequate training and education for managers and employees on handling whistleblowing cases and their rights and responsibilities.
  • Ensuring confidentiality and anonymity for whistleblowers as much as possible.
  • Conducting prompt, thorough, and impartial investigations into the allegations and taking appropriate corrective actions if warranted.
  • Providing support and assistance to whistleblowers during and after the investigation process, such as counselling, legal advice, or relocation.
  • Monitoring and evaluating the effectiveness of the whistleblowing policy and practice and making necessary improvements.
  • Firing managers and employers who engage in reprisal or retaliation from whistleblowers.

By protecting whistleblowers, employers can foster a culture of ethics and integrity in their organizations. They can also prevent or mitigate potential risks, losses, or damages from wrongdoing. Moreover, they can enhance their reputation and credibility among stakeholders and the public. Whistleblowers are not troublemakers or traitors; they are courageous and conscientious employees who deserve respect and protection.

An organization cannot, on the one hand, invite individuals to raise concerns while, on the other hand, have a clear track record of firing those people who do.

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