Blowing the whistle on a co-worker or supervisor is fraught with risk. The decision to report what is believed to be intentional, serious wrongdoing by a fellow employee or a boss cannot be made hastily and should be backed by evidence. Manitoba's legislation, however, leaves too much on the shoulders of public servants who stick their necks out in the public interest.
A review of Manitoba's Public Interest Disclosure Act, by former human rights commission executive director Dianna Scarth, found those who report misconduct and weather the anxiety of an investigation that follows are given insufficient protection should reprisal result.
Currently, a whistleblower or any employee who believes they have been targeted for reprisal must complain to the Manitoba Labour Board. The board's process is long and requires the complainant to identify himself or herself as a whistleblower. Hearings are held in public.
As one whistleblower related to Ms. Scarth, that was too daunting to consider after having gone through the difficult investigation of the initial report of malfeasance.
Statistics may back up the sentiment. Since 2007, when the act came into effect, the labour board has received only three such applications and none met the threshold for a hearing.
Further, the labour board's requirement a complainant reveal himself as a whistleblower means others wrongly targeted in an atmosphere of suspicion and vengeance are without recourse.
Ms. Scarth recommended the provincial government give the ombudsman's office the job of investigating reprisal complaints, as is done in other provinces. An investigation will likely reveal the complainant's identity, but does not have to disclose whether he or she was the whistleblower.
Manitoba's legislation, the first in Canada, has been slow to encourage whistleblowers to come forward. Until 2013, when the number of reports shot up, it appeared either few knew of, or needed to use, the legislation. Last year, the ombudsman received 42 reports of serious wrongdoing, such as unlawful activity, gross mismanagement or acts endangering life or health.
Part of the problem may be inadequate education of the public service about the whistleblower act and process. A survey of provincial employees published by the provincial auditor general earlier this year found a third of respondents said they knew of ethical misconduct or fraudulent activity, but only half reported it to a supervisor.
Respondents said they thought nothing would come of it or they would feel the blowback of reporting it.
The process of reporting misconduct is laden with risk, which cannot be entirely stripped from the process. But some anxiety might be relieved were employees aware they need not make their complaint internally, but can go to the ombudsman's office where they can discuss their concerns about reprisal, as well.
Not all complaints result in formal investigation and response, however. The ombudsman has the authority to look into maladministration, as well as the more egregious conduct that triggers the formal whistleblower process. The office also has the duty to dismiss when a report is found to be without basis or sufficient evidence.
Anecdotal evidence makes clear there is valid cause to be worried that reporting another's misdeeds, especially of those who have some power over individuals, can bring a whole world of pain down on would-be whistleblowers. That is why these reports cannot be made without serious forethought and must be compelled by public interest.
The Selinger government says it wants open consultations on Ms. Scarth's report before changing the act, but the better protection against reprisal cannot be delayed. An amendment to give the ombudsman authority to investigate reprisal ought to be introduced in the next legislative session.