Public Interest Disclosure (Whistleblower Protection) Act
Best Practices for Key Elements of a
Whistleblower Policy and Procedure
Prepared by:
Policy and Governance | Service Alberta
May 2013
Public Interest Disclosure (Whistleblower Protection) Act
Best Practices for Key Elements of a Whistleblower Policy and Procedure
Table of Contents
Background ................................................................................................................................................. 3
Key Elements ............................................................................................................................................... 4
1.
Statement Of Support For Whistleblowers ................................................................................. 4
2.
Purpose Of The Procedures ......................................................................................................... 4
3.
Purposes Of The Act..................................................................................................................... 5
4.
Definition Of Key Terms ............................................................................................................... 5
5.
The Disclosure Process................................................................................................................. 6
6.
Roles And Responsibilities ........................................................................................................... 7
7.
Confidentiality.............................................................................................................................. 9
8.
Dealing with Anonymous Disclosures ........................................................................................ 12
9.
Collating and publishing statistics.............................................................................................. 12
10.
Receiving and assessing disclosures .......................................................................................... 13
11.
Dealing with “Imminent Risk” .................................................................................................... 16
12.
Investigations ............................................................................................................................. 17
13.
Timelines .................................................................................................................................... 20
14.
Action taken after investigations ............................................................................................... 20
15.
Protection from Reprisal ............................................................................................................ 21
16.
Managing the welfare of the whistleblower ............................................................................. 22
17.
Management of the person against whom the disclosure is made .......................................... 23
18.
Offences ..................................................................................................................................... 23
19.
Review of Policies ...................................................................................................................... 23
20.
Other Considerations ................................................................................................................. 23
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Public Interest Disclosure (Whistleblower Protection) Act
Best Practices for Key Elements of a Whistleblower Policy and Procedure
Background
The following key elements of whistleblower protection policies and procedures were developed after
a cross-jurisdictional scan of best practices used in legislation, policies and procedures at the municipal,
provincial and federal level in Canada, Australia, the United Kingdom, and the United States.
Excellent examples of educational materials exist for both employees and employers, providing useful
content for the development of additional resources as part of the implementation of this Act. For
example, Queensland and New South Wales in Australia have developed best practices for
whistleblower policies and how to effectively investigate allegations of wrongdoing. In Canada, the
Treasury Board Secretariat developed templates for establishing internal procedures as well as
educational materials.
Several errors in the management of whistleblowers have been found in Australia. The following errors
can lead to serious consequences and “have the potential to effectively contaminate the relationship
between the whistleblower and the investigated authority and prejudice the integrity of any
investigation” (Source: Queensland Criminal Justice Commission, “Exposing corruption: a CJC guide to
whistleblowing in Queensland”, 1996):
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Failing to observe the confidentiality of a disclosure by having information pass through a series of
hands with few checks as to who has, or who should, view the material.
Telling anyone who asks about the details and investigations of the disclosure.
Reporting to the workgroup who the whistleblower is, what the allegations are, and whom they are
about.
Interpreting natural justice to mean a person has an immediate right to know when a disclosure
has been made about them and who made it.
Always as a first step, asking the person who is the subject of the disclosure about the allegation.
Forwarding the disclosure through the chain of command so as many people know about the
matter as possible.
Forewarning the person who is the subject of an allegation early notice about the allegations and
providing them with investigation details.
Allowing personal biases about the personality of the whistleblower to influence the assessment of
a disclosure.
Not taking seriously the concerns expressed by a whistleblower about the possibility of reprisal.
Ignoring potential conflicts of interest when deciding who should assess or investigate the
disclosure.
Allowing political considerations to influence the assessment of a disclosure or the findings of an
investigation.
Delaying the investigation for as long as possible so any evidence of wrongdoing can be altered or
destroyed.
While this document contains several suggested elements to be included in a policy or procedure, this
document is not intended to serve as a draft procedural document.
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Public Interest Disclosure (Whistleblower Protection) Act
Best Practices for Key Elements of a Whistleblower Policy and Procedure
Key Elements
1. Statement Of Support For Whistleblowers
One of the first items should be a statement which focuses on ensuring a positive, supportive
environment whereby employees can seek advice or make a disclosure of wrongdoing. A
commitment to protect employees from reprisal for making a disclosure should be prominently
displayed.
The policies and procedures established will go a long way to indicate the commitment of a public
entity to providing support for whistleblower protection. However, ensuring these policies and
procedures are followed and upheld on a daily basis ensures each entity “walks the talk”. Training
and awareness at all levels also indicates a high level of commitment.
Australia’s approach of “when in doubt, report” (Source: Australian Research Council Linkage Project,
“Whistling While They Work: Enhancing the Theory and Practice of Internal Witness Management in
Public Sector Organizations,” 2009; found at http://epress.anu.edu.au/titles/australia-and-newzealand-school-of-government-anzsog-2/whistleblowing_citation) reinforces the commitment to
employees that their concerns of wrongdoing will be taken seriously, and has been widely adopted as
part of organizational whistleblower protection policies across the country. The philosophy behind this
approach is that it is better to receive too much information than too little.
2. Purpose Of The Procedures
This is to identify why these procedures are in place, and is to expand on the stated objectives
of the Act where applicable. Incorporating the values of the public entity may be useful either
in this section, or as part of the statement of support.
Experiences from other jurisdictions indicate that an essential component of successful policies
and procedures relates to the level that whistleblower protection policies are interwoven with
general governance policies. (Source: Australian Research Council Linkage Project, “Whistling
While They Work: Enhancing the Theory and Practice of Internal Witness Management in Public
Sector Organizations,” 2009. page 3.)
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Public Interest Disclosure (Whistleblower Protection) Act
Best Practices for Key Elements of a Whistleblower Policy and Procedure
3. Purposes Of The Act
Taken from the legislation, the purposes of the legislation are stated.
The purposes of this Act are:
• to facilitate the disclosure and investigation of significant and serious matters in or relating to
departments, public entities or offices of the Legislature, that an employee believes may be
unlawful, dangerous to the public or injurious to the public interest.
• to protect employees who make those disclosures.
• to manage, investigate and make recommendations respecting disclosures of wrongdoings and
reprisals.
• to promote public confidence in the administration of departments, public entities and offices of
the Legislature.
4. Definition Of Key Terms
Definitions in most policies reviewed were placed either at the beginning of the document or in
an Appendix. Where possible, examples should be used to provide further clarity.
Definitions are to be taken from the Act and the Regulation. The definition of key terms should
be included in as many educational materials as possible.
Definitions that are suggested for inclusion in a policy or procedure include:
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“chief officer” means the deputy minister of a department, the department head of an office of the
Legislature and, with respect to a public entity, the prescribed individual.
o the PIDA Regulation further defines a chief officer in section 2(2) through definitions in
existing statutes in order to capture the broader public sector.
“designated officer” means the senior official designated by each chief officer to manage and
investigate disclosures under this Act.
“employee” means an individual employed by, or an individual who has suffered a reprisal and has
been terminated by, a department, a public entity or an office of the Legislature or an individual.
o the PIDA Regulation expands the definition of employee to include certain health
professionals in the public health sector, school boards, accredited private schools that
receive grants, charter schools, corporate agencies, boards and commissions with
employees, and colleges, universitites and technical institutes.
“public entity” means any agency, board, commission, Crown corporation or other entity
designated as a public entity in the regulations or relating to departments, public entities or offices
of the Legislature or relating to employees.
o the PIDA Regulation identifies the public entities through existing legislative frameworks in
the broader public sector as identified above.
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Public Interest Disclosure (Whistleblower Protection) Act
Best Practices for Key Elements of a Whistleblower Policy and Procedure
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“wrongdoing” is:
o a contravention of an Act, a regulation made pursuant to an Act, an Act of the Parliament of
Canada or a regulation made pursuant to an Act of the Parliament of Canada,
o an act or omission that creates: (i) a substantial and specific danger to the life, health or
safety of individuals other than a danger that is inherent in the performance of the duties or
functions of an employee, or (ii) a substantial and specific danger to the environment,
o gross mismanagement of public funds or a public asset, and
o knowingly directing or counselling an individual to commit a wrongdoing mentioned above.
“reprisal” is defined as any adverse employment action taken against an employee who seeks
advice on making a disclosure, makes a disclosure, or co-operates in an investigation of
wrongdoing, or declines to participate in a wrongdoing in accordance with the Act. Examples of
reprisal include:
o 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,
o any other measure that adversely affects the employee’s employment or working
conditions (e.g., bullying), and
o threats to do any of the above.
5. The Disclosure Process
The disclosure process is one of the key features of the internal process required under PIDA.
Research from the most comprehensive review of whistleblower policies in Australia (“Whistle
While You Work” project from the Australian Research Council Linkage Project) indicates that
there is ample benefit for public bodies in adopting a centralized process including:
• encouraging staff to raise matters of concern internally;
• providing a reporting channel for disclosures that may otherwise never be reported;
• ensuring disclosures by whistleblowers are properly and appropriately assessed and
acted upon;
• fewer people handling disclosures enhances confidentiality and thereby reduces the
likelihood of reprisals being taken against whistleblowers; and
• avoiding conflicts of interest by excluding supervisors, line managers and senior
managers from the assessment and investigation of any disclosure.
Specific components on the disclosure process are laid out in further detail later in this
document.
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Public Interest Disclosure (Whistleblower Protection) Act
Best Practices for Key Elements of a Whistleblower Policy and Procedure
6. Roles And Responsibilities
Public entities should provide as much information about the roles and responsibilities of key
individuals such as the Public Interest Commissioner, the Chief Officer, the Designated Officer,
the employee, and the employee who is the subject of the disclosure. Where possible, develop
separate educational materials focussed on each role.
This section can also provide useful information about who is covered under this legislation. For
example, employees of Alberta’s post-secondary academic institutions are included, but not
contractors.
A key indicator on the degree of success of the legislation is related to the overall environment
and culture of any organization. Those in leadership positions are strongly encouraged to
model ethical behaviour and should be aware of both the intent and the provisions of the
legislation.
Some key roles and responsibilities include:
Public Interest Commissioner
The roles and responsibilities are broadly outlined in section 45 of PIDA. They include:
• to carry out the purposes of this Act set out in section 2 which deals with wrongdoings within
public entities;
• to review and investigate disclosures and complaints of reprisals made under this Act; and
• to perform any other functions that are set out in this Act or the regulations.
Responsibilities of the Commissioner may be further identified by the Commissioner’s Office.
Chief Officer
Direct involvement of senior management in the reporting system appropriately reflects the
seriousness of whistleblower matters.
Some of the key responsibilities of the Chief Officer include:
• establishing and maintaining a working environment that encourages staff to report
wrongdoing;
• establishing an effective internal reporting system to appropriately deal with reports of
wrongdoing, support staff who report, and ensure reprisals are not taken against them;
• establishing an internal reporting procedure that contains a clear statement signed by the Chief
Officer indicating the public entity is committed to the highest standards of ethical and
accountable conduct and will support staff who report wrongdoing; and
• ensuring that staff are aware of the internal disclosure procedure and the whistleblower
protections of PIDA through effective communication and training;
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Best Practices for Key Elements of a Whistleblower Policy and Procedure
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ensuring that an experienced and Designated Officer is responsible for receiving and dealing
with reports of wrongdoing. And
ensuring adequate financial and human resources are dedicated towards achieving these
outcomes.
The Chief Officer needs to ensure that when wrongdoing is reported, it is dealt with appropriately and
the staff involved are supported. This includes:
• assessing all disclosures of wrongdoing according to established policies and procedures.
• as applicable, ensuring confidentiality of the employee making the disclosure, the employee
who is the subject of the disclosure, and any witnesses involved;
• being advised on decisions made in investigation reports, and ensuring follow-up on
recommendations or actions are completed according to established timeframes;
• providing adequate resources to those investigating a disclosure;
• ensuring systems and strategies are established to mitigate the risk of reprisals;
• ensuring that the workplace situation is effectively managed; particularly if there is conflict or
reprisal is threatened or takes place;
• taking appropriate action against anyone who threatens or takes reprisal against a person
disclosing a wrongdoing;
• taking appropriate remedial action in response to any findings that substantiate the allegations
of wrongdoing; and
• implementing any organizational reform that is necessary to address any identified systemic
issues.
One of the key responsibilities of the Chief Officer is to designate a senior official to serve as the
Designated Officer under the Act (if no Designated Officer is chosen, the Chief Officer will handle those
responsibilities). Several considerations in choosing who should be the Designated Officer:
• occupy a senior position;
• recognize that complaints are an opportunity to improve services;
• are credible with employees, union representatives and all levels of management by virtue of
experience;
• have strong interpersonal skills and can communicate effectively with employees and managers
of all levels;
• arenon-judgmental, and sensitive to cultural, literacy or other differences;
• respects the employee’s opinions, privacy and human rights;
• have good communication, negotiation, conflict resolution, problem-solving and investigating
skills (either to manage or conduct investigations); and
• possess sound judgment and the ability to advise on PIDA and relevant legal and policy
frameworks, including labour relations matters.
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Best Practices for Key Elements of a Whistleblower Policy and Procedure
Designated Officer
The Designated Officer is appointed by the Chief Officer to ensure the public entity carries out its
responsibilities under the legislation. Key responsibilities include:
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being a contact point for general advice and guidance about the operation of PIDA and the
organization’s internal process;
liaising with the Office of the Public Interest Commissioner;
liaising with the Chief Officer;
impartially assessing each disclosure to determine whether it is a public interest disclosure;
coordinating the disclosure process;
responsibility to carry out or appoint an investigator to carry out the investigations;
responsibility for overseeing and coordinating an investigation where an investigator has been
appointed;
reviewing results of completed investigations, providing the findings and any recommendations
to the Chief Officer;
advising the whistleblower of the progress of an investigation into the disclosed matter, and
inform them of the outcome of the investigation;
establishing and managing a confidential filing system;
developing a tracking system to manage disclosures and investigations;
collating and publishing statistics on disclosures made;
taking all necessary steps to ensure the identity of the whistleblower and the identity of the
person who is the subject of the disclosure are kept confidential; and
protecting employees involved in a disclosure of wrongdoing from possible reprisals.
7. Confidentiality
Ensuring that confidentiality is maintained at all stages for all employees involved in the process
is essential to ensuring the internal process is effective and maintains the confidence of
employees and employers. In turn, this impacts the public perception of the effectiveness of the
legislation.
Confidentiality is much easier to preserve at the early stages of a disclosure, and procedures
should be in place to maintain the confidentiality of all employees and all information or records
involved. Those administering the policies and procedures need to credibly and realistically
communicate to employees their responsibilities in maintaining confidentiality (e.g., not sharing
concerns/evidence of wrongdoing with fellow staff or actions that would make it easy for coworkers to ascertain their identity when a disclosure is made).
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Best Practices for Key Elements of a Whistleblower Policy and Procedure
Procedures regarding the retention and maintenance of files and information must adhere to
the highest standards available. Some considerations include:
• Keeping all files regarding disclosures of wrongdoing separate from existing files and
restrictin g access to only authorized officials. Both electronic and paper files should be
stored in such a manner to ensure security of information is paramount. For instance:
o paper files could be clearly marked as investigation files and include a prominent
warning on the front of the file; and
o electronic files could be password-protected.
• Sharing information about disclosures only with those authorized to address disclosures
(e.g., investigators, Designated Officers, Chief Officers).
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It is important to manage the risk of confidentiality from the outset of a disclosure being made.
Each public entity needs to determine what existing processes are in place for maintaining
confidentiality, and whether they need to be updated. This includes conducting a risk assessment
to assess the likelihood of confidentiality being lost throughout the course of the investigation and
any adverse effects arising from that loss of confidentiality. Considerations include:
• Has the staff member reported the issue before or said that they would do so?
• Can the issues identified be readily attributed to the employee making the disclosure?
• Can the issues be investigated without identifying the employee making the disclosure?
• Will the process of gathering evidence alert staff to the fact that a disclosure has been made?
• What is the risk that the subject of the disclosure will lead to guessing the identity of the
employee making the disclosure?
• What is the risk that the subject of the disclosure will threaten or take reprisal action if others
guess who made it or once they know a disclosure has been made?
• What is the risk of the employee making the disclosure suffering reprisal from elsewhere within
the public entity if their identity is revealed?
It is also important to be realistic with those making disclosures about any possible circumstances
where confidentiality may not be maintained. For example, some breaches of confidentiality are
out of the control of the investigator. Typically these breaches occur when the employee making
the disclosure reveals their own identity.
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Public Interest Disclosure (Whistleblower Protection) Act
Best Practices for Key Elements of a Whistleblower Policy and Procedure
8. Dealing with Anonymous Disclosures
Section 21 provides for the anonymous disclosure of wrongdoing directly to the Commissioner.
These disclosures can be made by anyone (i.e., non-employees), and the Commissioner has the
discretion to conduct an investigation or refer the matter to the appropriate public entity to
investigate through their internal procedures. Anonymity of these disclosures is protected
throughout the process.
If the Commissioner refers the matter, they can request regular updates and follow up on the
recommendations, and whether they have been implemented.
There may be other circumstances where one’s identity must be protected, and anonymity will
be extended. There should be clear guidelines on when anonymity is used.
It should be noted that generally speaking, anonymous reports often do not contain the required
information about a wrongdoing to be supported by a full and thorough investigation. Educating
employees about their responsibilities when making a disclosure will help to lessen the likelihood of
anonymous disclosures containing insufficient information to move forward. Entities may want to
develop a risk-management assessment tool to guide them through the process when anonymous
disclosures are made.
9. Collating and publishing statistics
Annual reports by each public entity and the Public Interest Commissioner have several
required statistical elements.
In order to effectively evaluate the legislation, it is suggested that further consideration to
evaluation criteria be developed and included in the procedures. Many public entities may have
already established best practices respecting evaluation criteria and these practices should be
reviewed in context of the provisions of PIDA prior to implementation.
Legislated inclusions:
Annual Report of Chief Officer: (section 32)
• the number of disclosures received by the Designated Officer, the number of disclosures acted on
and the number of disclosures not acted on by the Designated Officer;
• the number of investigations commenced by the Designated Officer as a result of disclosures; and
• in the case of an investigation that results in a finding of wrongdoing, a description of the
wrongdoing and any recommendations made or corrective measures taken in relation to the
wrongdoing or the reasons why no corrective measure was taken.
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Best Practices for Key Elements of a Whistleblower Policy and Procedure
Annual Report of the Public Interest Disclosure Commissioner: (section 33)
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the number of general inquiries made to the Commissioner relating to this Act;
the number of disclosures received by the Commissioner under this Act, the number of disclosures
acted on and the number of disclosures not acted on by the Commissioner;
the number of investigations commenced by the Commissioner under this Act;
the number of recommendations the Commissioner has made and whether the departments,
public entities or offices of the Legislature to which the recommendations relate have complied
with the recommendations;
the number of complaints of reprisals received by the Commissioner under this Act, the number of
complaints of reprisals acted on and the number of complaints of reprisals not acted on by the
Commissioner;
whether, in the opinion of the Commissioner, there are any systemic problems that may give rise to
or have given rise to wrongdoings; and
any recommendations for improvement that the Commissioner considers appropriate.
Other statistics organizations may wish to collect include:
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surveys from employees, supervisors, and designated officials;
“general inquiries” should be further identified as what is truly a general inquiry and what is
considered seeking advice on whether to make a disclosure. The nature of enquiry should also be
further broken down (e.g., telephone hotline; e-mail; contact with supervisor);
further breakdown of what is not investigated, including general nature of why an investigation
was not conducted (e.g., categories identified in legislation);
the number and nature of investigations where the Commissioner received disclosure of employee
dissatisfied with internal disclosure procedure;
a summary of the nature of the wrongdoing(s);
recommendations, action taken and any corrective measures to ensure similar wrongdoings are
mitigated; and
other publications, presentations and educational/training sessions undertaken.
10. Receiving and assessing disclosures
Legislated requirements are set out regarding the content of a disclosure. Section 3 of the
Regulation provides further detail on the requirements on the internal disclosure process.
Research from Australia stresses that “[e]ncouraging the reporting of wrongdoing is the first
major objective of any whistleblowing program.” (Source: Australian Research Council Linkage
Project, “Whistling While They Work: Enhancing the Theory and Practice of Internal Witness
Management in Public Sector Organizations,” 2009. page 3). This not only addresses the
likelihood of employee awareness of the policies and procedures, but increases the likelihood of
reporting wrongdoing. Additionally it increases the likelihood that disclosures received will be
handled properly.
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Best Practices for Key Elements of a Whistleblower Policy and Procedure
This section provides further details on both the legislative requirements, and additional
considerations when developing the public entity’s internal disclosure process.
How are Disclosures Made?
Legislated requirements are outlined in section 13:
Under PIDA, a disclosure must be in writing and must include the following information, if known:
(a)
a description of the wrongdoing;
(b)
the name of the individual or individuals alleged;
(i) to have committed the wrongdoing; or
(ii) to be about to commit the wrongdoing
(c)
the date of the wrongdoing;
(d)
whether a disclosure in respect of a wrongdoing has been made pursuant to the procedures
established under section 5 by the department, public entity or office of the Legislature and
whether a response has been received, and if so, a copy of the response;
(e)
any additional information that the Designated Officer or Commissioner may reasonably
require in order to investigate the matters set out in the disclosure; and
(f)
any other information prescribed in the regulations.
Section 3(1) of the Regulation allows public entities to provide a disclosure of wrongdoing form to
assist with disclosures made under section 13 of the Act.
Other considerations include:
• Disclosures are made to the Designated Officer of the public entity. Some disclosures can be made
directly to the Commissioner under specific circumstances outlined in section 10; and
• Another issue requiring some distinction is the relationship between disclosures of wrongdoing as
identified by the legislation and matters which are more appropriately defined as employment
grievances or performance management issues.
o This is a delicate topic, and those with a supervisory role or who administer
whistleblower protection policies and procedures should receive training on the issue.
o Employees may feel that their concerns are matters related to wrongoings instead of
grievances. If not addressed properly, employees may feel that the system is merely
protecting the employer. Information for employees on how to have their employment
grievances addressed should be communicated to them in a timely fashion so as not to
make a negatively charged situation a matter of public interest.
o Responses that do not effectively address grievances so that employees understand and
utilize more appropriate avenues to handle these matters may in fact complicate the
way in which a public entity deals with all disclosures and jeopardize the effectiveness of
the legislation.
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Best Practices for Key Elements of a Whistleblower Policy and Procedure
Receipt of Disclosure of Wrongdoing
• Proper documentation is critical in managing a disclosure. This needs to occur from the moment a
disclosure is made. Many other jurisdictions handle the receipt of disclosures with an intake form.
• Procedures are also established for supervisors or front-line staff so they are aware of what needs
to occur when they receive a disclosure.
Development and Use of Tracking System
• Incorporating a tracking system ensures that required information is captured and maintained
throughout the disclosure process. This is important for several reasons, including:
o guaranteeing consistency across public entities as to what information is collected –
especially important as front-line staff may be involved in initial contact with an employee
seeking advice or making a disclosure;
o confirming documentation required by legislation is collected and filed appropriately;
o ensuring additional information captured and maintained as part of the investigation;
o serving as a key indicator that implementation requirements are being met; also serves as a
method to gather statistics for the Annual Report; and
o safeguarding the principles of natural justice and procedural fairness.
Preliminary Analysis of Disclosure of Wrongdoing
• Part of the initial assessment is determining whether the disclosure is an allegation of wrongdoing
or an airing of a grievance. A disclosure of wrongdoing revolves around a “wrongdoing” or a risk
that a wrongdoing will occur. A grievance is a personal complaint about their own employment
situation. In a disclosure of wrongdoing, the employee is a witness, whereas in grievances the
employee is the complainant.
• Ensure disclosure is clear enough to prepare terms of reference / mandate for investigators to
conduct preliminary analysis of disclosure. Once completed, a preliminary analysis can occur, and
includes:
o conducting a preliminary assessment of the validity and credibility of the information
provided;
o determining how serious the complaint is and the significance it has for the complainant
and for the public entity, and whether it indicates the existence of a systemic problem;
o assessing whether the complaint is trivial, frivolous or vexatious;
o identifying critical issues that may require immediate attention, such as on-going concerns,
urgent safety or security matters, or potentially criminal acts;
o ensuring whether alternative and satisfactory means of redress is available (for example,
whether the parties are agreeable to informal resolution of the complaint);
o identifying other subject matters that should be addressed by another process or
authorities;
o ascertaining possible sources of information that would provide sufficient evidence to prove
or disprove the disclosure; and
o noting the time that has elapsed between the event and the complaint.
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All aspects of disclosure should be assessed for the level of reprisal risk, and routinely monitored to
see if there are changes. While this may seem unnecessary, it is an important proactive measure,
and further demonstrates a high level of commitment from management.
A decision can then be made on whether or not to proceed with a formal investigation, with
substantiated rationale for the decision.
The person investigating the complaint should clarify the issues with the employee making the
disclosure before preparing the investigation plan. Talking through the complaint at this point can
ensure that all the relevant issues are considered. Early evalution may also change the focus of the
investigation.
11. Dealing with “Imminent Risk”
Imminent Risk deals with situations that require immediate attention as they could pose
significant risk to public health or safety, or a danger to the environment.
Employees who disclose wrongdoing on matters that involve such an imminent risk are required
to disclose directly to the Commissioner under section 10(2) of the Act. The Commissioner will
then liaise with the appropriate law enforcement or public health authorities and, upon their
advice, will communicate the information to the public where necessary. The employee is still
required as soon as is practicable to disclose the wrongdoing to their Designated Officer, which
will begin the internal investigation process.
Examples should be used to illustrate real-life situations which would constitute an imminent
risk, and could revolve around a health-related outbreak (e.g., meningitis, Norwalk virus) or a
gas/oil leak.
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12. Investigations
Investigations are a systematic process. Evidence gathered will help to determine the validity
and extent of the nature of the disclosure made. The investigator will assess information
obtained about the disclosure, and follow any evidence of other possible wrongdoings
uncovered during an investigation.
The objectives of an investigation should be to:
• collate information relating to the disclosure as quickly as possible (this may involve
taking steps to protect or preserve documents, materials and equipment);
• consider the information collected and draw conclusions objectively and impartially;
• maintain procedural fairness in the treatment of witnesses and the person who is the
subject of the disclosure; and
• make recommendations arising from the conclusions drawn concerning corrective
action.
Principles of Good Administrative and Internal Investigations:
• investigations are conducted in a timely manner;
• conclusions are objective;
• investigations are handled in accordance with procedural fairness and natural justice;
• work is completed in a systematic, orderly and planned manner;
• those conducting the investigations are discrete;
• confidentiality is maintained wherever possible;
• protection of sensitive information is a key priority; and
• timely, corrective action as a result of an investigation is taken.
The Designated Officer has three main responsibilities regarding investigations:
• receiving, screening, and preliminary analysis of disclosures of wrongdoing allegations;
• selecting, mandating and managing the investigation team; and
• reviewing the report of the investigator’s findings, and making recommendations to the
Chief Officer.
Section 5 sets out minimum requirements for internal processes. Procedures in place usually include
the following areas:
Terms of Reference for the Investigation
• Terms of Reference should include the scope of the investigation and the investigators’
responsibilities for informing witnesses of their rights and obligations. The following information
should be included:
o the projected date/timeline for completion of the investigation. There should also be a
procedure in place based on section 5 of the Regulation to extend the timeframe if required;
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o a mechanism to change the terms of reference or scope of the investigation (requires approval
of the Designated Officer or Chief Officer);
o a preliminary list of the witnesses that may be interviewed;
o the data or documentary evidence needed;
o consideration that authorizations may be required from various sources to conduct the
investigation should be identified, as evidence may be under the control of other sources; and
o consideration needs to take into account the skill sets needed (i.e., the linguistic competencies,
the departmental resources to be consulted (legal, HR, finance, etc., if required), and the
estimated budget).
•
The Terms of Reference should ask the minimum questions:
o What is being alleged?
o What are the possible findings or offences?
o What are the facts of issue?
o How is the investigation to be conducted?
o What human and financial resources are needed to conduct the investigation?
Establishing the Investigation Team
• The Designated Officer may, if no conflict-of-interest exists and assurances of confidentiality are
made, use internal specialist resources (security, IT, audit).
• Section 3(3) of the Regulation identifies the process when the Designated Officer is in conflict of
interest. How a public entity deals with determining an alternate should be included in an entity’s
internal procedure.
Investigation Planning
• Insufficient planning may detrimentally alter an investigation. As such, a refined plan which
elaborates on the preliminary assessment is required. Further information on what other evidence
is required, identifying whether further witnesses are needed is completed, and drafting the
preliminary list of questions and the order in which witnesses are to be interviewed.
• Regular reports to the Designated Officer should be built into the plan.
• Any changes to the scope of the investigation need to be approved by the Designated Officer.
Investigation
• The employee who made the disclosure should be made aware of the start of the investigation and
be given the contact information of the lead investigator. They should also be asked to clarify any
matters which are still unclear and be asked for any additional material they have.
• The investigator needs to be sensitive to the whistleblower’s possible fear of reprisal and to be
aware of the statutory protections provided to the whistleblower.
• Notes should faithfully reflect any testimony given, and be signed and dated by each witness.
• Any information prepared by the witness must be turned over to the investigation and becomes
part of the record.
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•
•
As much as possible, interviews are conducted in person.
Rules of documentary evidence should be clearly noted. It is important to authenticate
information (electronic or paper), and to ensure that when possible, original copies of documents
are made part of the investigation file.
Reports
Report of the Investigation Team
• The report should be a narrative that provides the Designated Officer with all the required
information to make a final determination regarding whether or not corrective action needs to be
taken.
• Reports should be logical, clear, concise and without personal opinions or extraneous comment.
All relevant facts and analysis should be included.
• The Designated Officer is required to review the report to ensure that all questions are answered,
and that all conclusions are substantiated.
Designated Officer’s Report
• The Designated Officer is required to make a separate report to the Chief Officer which includes
whether the disclosure was substantiated, and where applicable, any recommendations on
corrective action.
o If the disclosure of wrongdoing was not substantiated, some corrective actions (such as
improvements to the systems or disciplinary action) may still be required.
Communication
• It is important to keep the employee apprised throughout the process without violating the
principles of procedural fairness. At minimum, this includes notifying employees when an
investigation is undertaken, and when an investigation is concluded. They should be notified prior
to any release of reports. For example, the United States federal legislation contains a provision for
the employee making the disclosure to have the opportunity to provide a response on the
investigation report prior to the report being sent to the President.
• When disclosures are made to the Commissioner, it is their responsibility to notify the respective
Designated Officer and Chief Officer that a disclosure has been made regarding that public entity.
Communication is encouraged between bodies as much as possible throughout process (e.g., at
milestones) as long as it does not impede on procedural fairness.
Principle of Natural Justice
PIDA states that the principles of natural justice and procedural fairness apply to investigations into
disclosures of wrongdoing. The aim is to ensure that objectiveness is maintained throughout the
process and that procedural fairness is adhered to. This protects the rights of the individuals involved,
and will help enhance public confidence in the process. Several issues to consider include:
• the person who is the subject of the disclosure is entitled to know the allegations made against
them and given the right to respond. (Knowing the identity of the person who made the allegation
is not a part of natural justice, and should not be shared.);
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•
•
•
•
•
if the investigator is contemplating making a report adverse to the interests of any person, that
person must be given the opportunity to respond to the criticisms and to put forward further
material that may influence the outcome of the report and that person’s defence should be fairly
set out in the report;
all relevant parties to a matter should be heard and their submissions considered;
those investigating the disclosure of wrongdoing should not have a personal or direct interest in
the matter being investigated;
all proceedings must be carried out fairly and without bias. Care should be taken to exclude
perceived bias from the process; and
the investigator must be impartial in assessing the credibility of the employee making the
disclosure and any witnesses. Where appropriate, conclusions as to credibility should be included
in the investigation report.
13. Timelines
The Act establishes that timelines are to be set out in internal procedures (section 5(2)(a)). These
timelines are included in section 3(7) of the Regulation. Timelines include:
• time to acknowledge receipt of disclosure is 5 business days from date disclosure was received;
• time to determine whether investigation will proceed is 10 business days from date of
disclosure;
• time to complete investigation and submit investigation report to Chief Officer must be
completed in 110 business days.
Section 5 of the Regulation allows the Chief Officer to extend the time limit by up to 30 business days in
the event the process cannot be completed within the prescribed limits. Any further extensions of time
must be granted by the Public Interest Commissioner.
14. Action taken after investigations
What actions are taken once an investigation is complete is important to the overall perception on the
effectiveness of the legislation. Without implementing recommendations made or correcting
deficiencies which lead to wrongdoing, the legislation is not effective.
Recommendations included in any investigation report should be reviewed, and a plan developed to take
necessary action as early as possible.
Communication with the employee who made the disclosure is also important. At minimum, they
should be notified that the investigation is complete, and what (if any) recommendations are made
based on the findings of the investigation.
(…continued)
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Outcomes should be fair and reasonable for the public entity and the employee making the disclosure.
There are a variety of outcomes offered, such as:
• an explanation;
• an apology;
• mediation;
• an admission of fault;
• a change in decision;
• a change to policy, procedure or practice;
• a change to the relevant law;
• a correction of misleading records;
• financial compensation, including a refund of any fees;
• the waiving of a debt;
• the remission of a penalty;
• protection to the employee making the disclosure;
• disciplinary action; or
• referral of a matter to an external agency for further investigation or prosecution
15. Protection from Reprisal
A key purpose of the Public Interest Disclosure (Whistleblower Protection) Act is the protection of
employees from reprisals. Any adverse employment action taken against employees who seek advice
about making a disclosure of wrongdoing, make a disclosure of wrongdoing, or who participate in an
investigation into a disclosure of wrongdoing are protected under this Act.
Employees who suffer reprisals must make their complaints directly to the Commissioner, who will then
investigate and make recommendations to the public entity involved. This does not prevent an
employee from seeking additional avenues of redress.
Where possible, examples should be used to illustrate cases of reprisal, and to provide further
clarification on the scope of what is considered a reprisal.
Legislative Requirements – Part 4 (sections 24 – 27)
Reprisals (s. 24) No person shall take or direct, or counsel or direct a person to take or direct, any of
the following measures against an employee because the employee has, in good faith, sought advice
about making a disclosure, made a disclosure, co-operated in an investigation under this Act, declined
to participate in a wrongdoing or done anything in accordance with this Act:
(a) 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;
(b) any measure, other than one mentioned in clause (a), that adversely affects the
employee’s employment or working conditions;
(c) a threat to take any of the measures mentioned in clause (a) or (b).
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Complaints of reprisals (s. 25)
(1) Subject to subsection (2), an employee may make a written complaint to the Commissioner if
the employee alleges that a reprisal has been taken or directed against the employee.
(2) An employee of the office of the Public Interest Commissioner, and if the Legislative Assembly
appoints the Ombudsman as the Commissioner pursuant to section 38(2), an employee of the
Office of the Ombudsman, may make a written complaint to the Auditor General if the
employee alleges that a reprisal has been taken or directed against the employee.
(3) A complaint under this section must be in the prescribed form. Schedule 3 of the PIDA
Regulation contains the prescribed form for reporting reprisals.
Managing and investigating complaints of reprisals (s. 26) If a complaint is made to the Commissioner
under section 25(1) or to the Auditor General under section 25(2), the Commissioner or the Auditor
General, as the case may be, must, subject to the regulations, manage and investigate the complaint in
the same manner as a disclosure.
Reasonable human resource management decisions (s. 27) No action lies against a department,
public entity or office of the Legislature, or an employee of any of them, for making a reasonable
human resource management decision in good faith.
16. Managing the welfare of the whistleblower
The legislation does not go into specifics about how public entities are to manage the welfare of the
whistleblower, but is an important consideration in developing policies and procedures under PIDA.
Several considerations will go a long way in ensuring a successful program, including:
• ensuring confidentiality is maintained;
• maintain regular communication with the whistleblower;
• ensuring the whistleblower is aware of Employee Assistance Programs to provide/refer to
additional support avenues; and
• managing expectations of the employee making the disclosure. (Australia has developed
literature on this subject if further reference is needed.)
Best practices stress this needs to be undertaken separately from those who assess and investigate the
disclosure of the wrongdoing. Using the Australian example, a welfare officer is also designated in each
public entity.
Support to other actors in the process (e.g., witnesses) should also be ensured.
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17. Management of the person against whom the disclosure is made
Procedures should not ignore the welfare of the employee who is the focus of a disclosure of
wrongdoing.
The legislation identifies that the principles of natural justice will apply throughout the receipt
and investigation of a disclosure. Again, maintaining confidentiality and protection of identities
is critical to ensure that a fair and unbiased investigation takes place and will help to mitigate
the impact on the workplace through the process.
At the earliest possible opportunity (generally the assessment phase), the employee who is the
subject of the disclosure should be given an opportunity to respond to the generalities of the
allegations made against them.
Procedures should be established to avoid unnecessary harm to that individual who is the focus
of the disclosure, particularly as an investigation might exonerate them from any wrongdoing.
Public entities may appoint an internal contact or make use of an employee assistance program
to ensure those who are the subject of disclosures are given the appropriate support.
Best practices stress this needs to be undertaken separately from those who assess and
investigate the disclosure of the wrongdoing.
18. Offences
The policies and procedures outline the types of offences under the legislation and any
associated fines. In addition to identifying the offences identified in the legislation, the
procedures should include some guidance on what situations should be referred for
prosecution.
Most procedures also outline the protections offered to them (i.e., protection from liability).
Offences include:
• False Statements (s. 46). No person shall knowingly withhold information or make a false
statement (at any stage of the process), or counsel or direct a person to provide a false statement.
• Obstruction (s. 47). No person shall obstruct, or counsel another person to obstruct, any individual
involved with the disclosure of wrongdoing process from performing a duty or function of this Act.
• Destruction, Falsification, or Concealment (s. 48). No person shall destroy, falsify, or conceal any
document or thing that is likely to be relevant to an investigation under the Act; or counsel another
person to do so.
Penalties under this Act (s. 49) include a fine of no more than $25,000 (first offence) to $100,000
(subsequent offences). It should also be noted that section 50 imposes a two-year limitation on
prosecution from the date the alleged offence was committed.
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19. Review of Policies
Part of an effective evaluation of a policy or procedure involves a regular comprehensive review
at regular stages. PIDA has a mandated two-year review once the Act is in force (section 37). It
is recommended that the Commissioner and the responsible Department spearhead a review of
the internal procedures established by the public entities this Act covers. (Note – section 37
states that future reviews are conducted at five-year intervals.)
The PIDA Regulation is set to expire on May 31, 2018.
Part of good governance is the regular and comprehensive review of policies and procedures. While
there are some elements which are legislated as part of an Annual Report, many more requirements
are needed for an effective evaluation.
20. Other Considerations
Ensuring proper training is essential for supervisors, the Designated Officers and the Chief
Officers charged with the administration of the legislation.
As the Chief Officer is charged with ensuring employees are aware of the legislation and the
provisions offered to employees, both educational and general information materials
should be developed for employees.
Designated Officers should be well versed in the roles and responsibilities under PIDA, and
should have some investigation experience and be knowledgeable on the principles of
natural justice and procedural fairness. Designated Officers should be aware of best
practices in administering whistleblower protection policies and should keep current on
PIDA-related developments (e.g., nature of investigations completed and recommendations
made in other public entitites, and decisions made by the Commissioner).
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Supervisors are likely to be the first point of contact regarding informal advice and
disclosure of a wrongdoing, it is crucial for them to be aware of the following:
• the definition of wrongdoing under the Act;
• the provision of information by an employee regarding a possible wrongdoing
should be treated as a disclosure under the Act, which entails the protection of
information related to the disclosure and triggers from reprisal for the person
making the disclosure;
• they must know the identity and role of the Designated Officer for their public
entity; and
• that they must collect statistics and other information as may be required with
respect to disclosures to satisfy their Chief Officer’s obligation to report annually
regarding disclosures made in that public entity under the Act.
Lessons learned from other jurisdictions indicate that education and training of supervisors
and those responsible for the administration of whistleblower protection policies and
procedures are often inadequate and inconsistent. This is particularly the case for those
involved in investigations of disclosures. Proper attention to regular training based on best
practices tailored to each audience needs to be a high priority.
Training should also be provided to front line staff (including mail centres, call centres,
online service units) to ensure they are aware of the general nature of disclosures and the
established procedure and can identify possible disclosures are referred appropriately.
For more information, please contact:
Twyla Job
Policy Analyst | Policy and Governance
May 2013
Phone (780) 643-6724
twyla.job@gov.ab.ca
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