The HR Space is edited by Lyne Duhaime, Karen M. Sargeant and Brian P. Smeenk.
Your employee makes critical comments to the press about your company. Is he a legitimate whistleblower or has he violated his duty of loyalty to his employer? In Chopra et al. v. Treasury Board (Department of Health)an adjudicator at the Public Service Labour Relations Board recently considered just that. He considered whether three scientists at Health Canada ("the grievors") breached their duty of loyalty to their employer when they criticized the government in the media. For the reasons outlined below, he determined that the grievors were not legitimate whistleblowers and instead breached their duty of loyalty to their government employer.
The grievors worked as drug evaluators for Health Canada's Veterinary Drugs Directorate. Over a period of several years, they publicly criticized Health Canada and the Canadian government in television and radio interviews, at press conferences, and through open letters to various organizations. They made allegations of corruption, cover-ups, and incompetence in the veterinary drug approval process. They also alleged that Health Canada scientists were pressured to approve drugs by high-level figures in the Privy Council Office and the Prime Minister's Office. They further claimed that when they stood up to these pressures, they were harassed at work.
In response to some of their early comments, the government started an internal investigation. This investigation ultimately determined that the grievors' claims were baseless and that they had made misleading statements to the public about scientific matters. In response, the grievors were suspended. The suspensions led to the termination of the grievors' employment through progressive discipline after long-standing performance issues were not resolved.
Adjudicator Mackenzie determined that the grievors' suspensions were justified. In making that decision, he relied on the Supreme Court of Canada's decision in Fraser v. Public Service Staff Relations Board. In that case, the Supreme Court of Canada set out a list of exceptions to an employee's duty of loyalty to his or her employer:
- revealing illegal acts by the employer;
- revealing policies that jeopardize the life, health or safety of employees or the public;
- the statement has no negative impact on the employee's ability to effectively perform his or her duties.
None of these exceptions applied to the grievors. With respect to the first two exceptions – the public interest exceptions – the Adjudicator made it clear that employees must have evidence of the wrongdoing for them to apply. In the case of two of the grievors, they had no evidence of wrongdoing, and instead made completely unsupported allegations, particularly with regard to criminality or corruption inside Health Canada. That one of the grievors had the expertise to make the statements he did, did not change the Adjudicator's decision – the remarks were still inappropriate.
Further, assessment of "evidence" is to be based on the employee's knowledge at the time the statement is made, and not with the benefit of hindsight. Even though the third grievor was correct in his allegations against the employer, he could not have known that they were true when he made them. The fact that his allegations were later proven correct did not justify his criticism at the time he made his comments.
As a result, all three grievors' statements to the media violated their duties of loyalty to their employer.
Exhaustion of Internal Remedies
The grievors were also criticized for not waiting on the outcome of the government's internal investigations: "a loyal employee will give the employer a reasonable opportunity to correct the problem." Adjudicator Mackenzie continued by adding that "implicit in the exceptions to the duty of loyalty is the idea that the concern being raised is not already in the public sphere or is not being addressed by anyone as a pressing public safety or health concern."
Roleplaying: When Does an Employee Speak as a Private Citizen?
All of the grievors argued that they were entitled to comment on these matters as concerned private citizens. Previous cases, such as Re Snow Lake District School District 239, have allowed a separation between an individual's different roles inside and outside the workplace. Not in this case. Here, the Adjudicator repeatedly emphasized that as scientists, the grievors' comments would attract a high degree of media interest, and carry significant weight with the public. For technical personnel with expert knowledge, it may be more difficult to shed the role of employee when speaking publicly.
Criticism by (Silent) Endorsement
In addition to public statements, the third grievor was suspended for merely attending a press conference whose objective was to "denounce Health Canada's practices." He was introduced by the organizers, but did not speak. The Adjudicator was critical of the third grievor in this regard as well, saying "by his very presence, he supported the purpose of the news conference," and that the attendance of Health Canada scientists "added legitimacy" to the concerns of the press conference organizers. Despite not speaking at the press conference, the third grievor was deemed to have publicly criticized his employer. This, plus his earlier statements about the loss of his position, justified his five-day suspension.
Lastly, the grievors' argued that by delaying any punishment for over two years, the government had condoned their actions. This was rejected out of hand. Because the government was waiting for the results of its internal investigation, and because it had repeatedly cautioned the grievors about speaking to the media, the employer could not be said to have condoned their actions.
What This Means for Employers
This ruling clarifies the boundaries of acceptable criticism by employees of their employer. It helps employers distinguish between true whistleblowers, who will be protected by the law, and others whose comments do nothing to advance the public interest. Employers should keep the following in mind:
- Because the ability to publicly criticize the employer under the public interest exceptions depends on exhaustion of internal remedies, employers should carefully follow up on all internal complaints or allegations. Employers should gather documentation of the information available to the employee at the time the statement is made, since this is the relevant factual context for the allegations.
- If an issue is already highly publicized, or if demonstrably effective measures are already being taken to deal with an issue, employees cannot claim to be whistleblowers, since their criticism brings nothing new to the public sphere.
- Employers should assess the expert or confidential knowledge of employees who publicly criticize their company. This expertise (or lack thereof) may inform the arbitrator's decision the extent to which an employee can justifiably comment on a controversy, scientific or otherwise.
- The visible presence of employees at an event can be criticism if their presence would be interpreted by the public as adding legitimacy to critical statements made by others.
- Employers should deal promptly with public criticism to avoid being accused of condoning the employee's behaviour, and should document any delay in the response and the reason for it.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.