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Whistleblowing The Right Way

Column which ran in the

Sharon Watkins earned her 15 minutes of fame the honest way, as the Enron employee who blew the lid off of then CEO Ken Lay’s debauchery. But for every celebrated whistleblower, there are hundreds who remain in the shadows. And for good Samaritans who do tell their tale, the price they pay can be exorbitant.

Why should that still be the case when transparency and accountability are the new buzzwords? According to Joanna Gualtieri, who exposed overspending in Canada’s Foreign Affairs Ministry, it’s because “the system is unfairly biased against those who simply want to do what’s proper.”

Gualtieri should know. As a lawyer who felt called to public service, she was appalled by the wastage she was asked to disregard. Bringing evidence to her supervisors brought little response. Taking it up the line did; she claims that management froze her out while most of her peers ostracized her.

Not an atypical reaction. Many employees who witness the wrongdoing of their colleagues or higher ups are loathe to speak out. The risk of recrimination is high in Canada, where there is no umbrella protection for those who bring their employer’s transgressions to light—especially in the private sector.

Contrast this with the States. Post-Enron, Congress quickly passed the Corporate and Criminal Fraud Accountability Act. It protects corporate whistleblowers against retaliation by their company.

Back home such security exists only in dribs and drabs. “At the federal level, you can look to specific sections of the Environmental Protection Act, Labour Code, Competition Law, and Human Rights Code,” says Duff Conacher, Coordinator of Democracy Watch (www.dwatch.ca.) But he cautions that even if you do find remedies in these or other areas, you are on your own until you win your case, often requiring you to spend your own money in a court of law.

Unless you’re in the public sector or belong to a sympathetic union, that is. Back in late 2001 the government set up the Public Service Integrity Office (www.psio-bifp.gc.ca.) Their mandate is to provide employees with an independent, external, impartial mechanism to receive and investigate good faith disclosures by employees alleging misconduct.

Conacher, who provides links to corporate responsibility sites, applauds the effort but insists that it falls short of the mark. “So long as the Integrity Office is headed by a public servant who has no fixed term to operate within, the perception of autonomy will always be in question.” This could all change if Bill C-34, which intends to create an independent Ethics Commissioner with true legal clout, passes in the House of Commons.

Cold comfort for the likes of Dr. Nancy Oliveri, who was threatened with dismissal from her role with Sick Kids Hospital when she raised the alarm about a drug she was testing on behalf of Apotex. Or for Paula Leggieri, who claims she lost her job when she tried to alert the City of Toronto to potential misdealings in the MFP leasing imbroglio.

Not a pretty picture. So how do you know if you should report a transgression, and where do you begin?

According to Louis Clark, Executive Director of the U.S. Government Accountability Project (GAP), “it’s a murky area and you need to follow your own moral compass. However, if a law is broken or will potentially be violated, or if harm is clearly being done, than you should speak up.”

If you do, make sure that you tread carefully. “Start by staying calm. Document everything and get good advice,” says Gualtieri, who can be contacted at fair.canada@sympatico.ca. She has spent over four years battling for her rights and has set up the Federal Accountability Initiative for Reform, to help others.

“Consult with your close family members and try to gain their support. You’ll need them to appreciate the difficulties you may be subjected to, like harassment, marginalization, questioning of your judgment and loyalty, and possibly suspension,” Gualtieri adds.

According to Clark, it’s best to work within the system first. Bring the problem to the attention of supervisors or the ombudsman, in writing if necessary, and follow established procedures—if they exist. Some forward thinking companies, like Dupont Canada and Nortel Networks, have established dedicated phone lines, absent caller I.D., where you can speak in confidence about your concerns and have an investigation started, if warranted.

Remember, the idea is to repair the mess, not to gratuitously seek the limelight.

If you do feel compelled to seek redress outside of your employer, here are some other steps that you can take. Try to find others where you work who will corroborate your testimony. Locate a lawyer who specializes in employee rights and get an initial opinion. Identify and contact not-for-profits who may be able to assist you and even pick up your cause, such as professional or industry associations, and regulatory bodies. You can find the “Directory of Associations In Canada” at your local library.

As a final step, be prepared to take your case public. Get in touch with M.P.’s, call selected media and even send out a press release if necessary. (For more info on steps to take when whistleblowing, check out GAP's slate of informative hints. Then review how a company might relaliate.)

Not that any of this will guarantee you satisfaction. But it will likely get your story heard. According to Conacher, that’s precisely what we need in order for change to be affected. “If workers do not feel completely safe and protected, they’ll never come forward. We must work together in order to ensure that our rights are enshrined in the law.”

Conacher is busy building coalitions of citizens groups to help bring about these transformations. Among his current campaigns are initiatives on corporate responsibility and government ethics.

Beyond the local scene, Clark points to a startling development which extends hope to employees of multinational companies here in Canada. Clark’s Senior Attorney, Joanna Royce, revealed just last week that any publicly traded company reporting to the SEC may be forced to extend whistleblower coverage to its staff regardless of where the worker is located.

The implication? If you’re employed in Canada by such a company, you may be able to file suit in the U.S., demand a jury trial (if deemed appropriate), and sue for reinstatement, compensatory damages, attorney fees and back wages. More information is available at the GAP website (www.whistleblower.org).

Before making any complaint public, however, make sure that your case is built on solid ground. An employer could potentially turn around and sue you for liable or slander. Your only defense would be that you’re telling the full, unembellished truth.

Beyond the pitfalls of being honest, standing up for what you believe in can have its own rewards. Gualtieri succeeded in setting a precedent, allowing whistleblowing public servants to sue the government if they feel they’ve been harassed for their efforts. Dr. Oliveri received a commendation from the Business and Professional Women’s Clubs of Ontario and is back at work. Meanwhile, the nurses at North York General Hospital who revealed the post-hysteria SARS cluster can take comfort in knowing that they may have saved people’s lives.

In the final analysis, only you can decide if it’s worth the risk to blow the whistle on workplace offenses. Should you chance it? Or should you let it slide so that it can be perpetuated? In the words of a beleaguered--but undefeated--Gualtieri, “There is no more important thing in the modern workplace than to be able to express yourself freely and do the right thing.”

Mark Swartz, MBA, M.Ed., is a speaker, career coach and author. He can be reached via e-mail.

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