What is Whistleblowing? Guide To Whistleblowing in Canada

Whistleblowing is when an employee reveals corporate wrongdoing to law enforcement.

Whistleblowing was defined in 1972 by Ralph Nader as “an act of a man or a woman who, believing in the public interest overrides the interest of the organization he serves, publicly blows the whistle if the organization is involved in corrupt, illegal, fraudulent or harmful activity.”

What Legal Protections Can Whistleblowers in Canada Expect?

While there are increasing incentives from governments and regulators for whistleblowers to go public about corporate misconduct, protections for whistleblowers are still very limited. Few Canadian laws pertain directly to whistleblowing and therefore whistleblowers are mostly unprotected by statute.

There is, however, a patchwork of protection provisions for whistleblowers under the Canadian Criminal Code, Public Servants Disclosure Protection Act (PSDPA), the Public Service of Ontario Act, 2006 as well as the Securities Act.

Section 425.1 of the Criminal Code, for example, states that employers may not threaten or take disciplinary action against, demote or terminate an employee in order to deter him or her from reporting information regarding an offence he or she believes has or is being committed by his or her employer to the relevant law enforcement authorities.

In short, an employer cannot threaten an employee with negative repercussions to deter them from contacting law enforcement with information about their employer’s offence. Punishment for employers who make such threats or reprisals can include up to five years imprisonment and/or fines.

Whistleblowing in the Federal Public Sector

Employees in the federal public sector are protected by the PSDPA. This act demands that employers establish a code of conduct with civil protections for whistleblowers. Ontario’s Public Service of Ontario Act, 2006 has similar protections to the federal PSDPA.

Additionally, Ontario’s Securities Act established a new whistleblower program in July of 2016. This consisted of amendments to the Securities Act that give extra protection to individuals who report a potential violation of Ontario securities law.

It is important to note, however, that you are only covered by these protections if you bring your information forward to a law-enforcement body. You are not protected if you leak your information to the media.

Employees Have a Duty of Fidelity

As an employee, you have a legal duty of confidentiality and fidelity to your employer. If you become aware that a superior in your company has committed a serious misdeed, this must usually be reported first to the employer, not the police or a regulatory body. After you have reported the misconduct to the appropriate internal body, your employer doesn’t have to disclose to you what they do with this information. This means that you may never know the results of their inquiry into the reported transgression.

You’re Not A Whistleblower If…

Lastly, not every misstep or misdeed warrants whistleblowing. You are not a whistle-blower if the issue you are reporting:

  • pertains to personal or personnel issues (i.e. workplace bullying and harassment);
  • is regarding a dispute between the you and the organization (i.e. a dispute regarding vacation time); or
  • involves simple mismanagement (i.e. poor supervision) as opposed to gross mismanagement that poses a risk to the organization or public.

The above issues can usually be addressed internally through Human Resources.

Legal Experts in Canadian Whistleblowing

If you are concerned with the legal implications of corporate or managerial misconduct at your workplace, be sure to speak with an experienced employment lawyer. KCY at LAW can help.

Call us at 905-639-0999 or click here to book your consultation.

Temporary Layoffs – Guide For Employers & Employees

You were laid off? Oh no! That’s awful. I’m so sorry. You know what, they never appreciated you the way you deserve. What a lousy bunch of – temporarily? Ohhhh. Huh. So, you’re not fired? Ok. Refresh my memory on this whole temporary layoff thing!

What Is A Temporary Layoff?

Chances are, you’ve heard of temporary layoffs. Maybe you’ve wondered if this could happen to you and, if it did, what exactly that would mean.

A temporary layoff is the cutting back or complete cessation of an employee’s employment with the understanding that they will be called back to their full-time position within a specified period of time. A temporarily laid off individual is still considered an employee, even if they are not working. This can mean that they are not working at all, or even simply earning less than half of their regular wages.

Temporary Layoffs – A Solution for Hard Times

A temporary layoff is a way mitigate economic hardship for both employer and employees. Temporary layoffs are often brought on by things like economic downturn, shortages of work and seasonal employment.

Temporary layoffs are most common in union environments where collective bargaining agreements determine the parameters of a layoff such as which employees are the first to return to work.

A temporary layoff allows employers to avoid severance or termination costs as long as the employee is recalled to work within 13 weeks of the layoff’s commencement. Though it would certainly be appreciated by their employees, employers have no obligation to provide notice of a layoff. Additionally, employers are not required to give termination notice until the last day of the layoff should it become clear that the layoff will have to become permanent.

Contractual Agreements and Temporary Layoffs

The parameters of temporary layoffs are set out in the Employment Standards Act (ESA). However, the ESA doesn’t give employers the right to enact them. The right to temporarily layoff an employee must be contractually stated, either in the employment contract or the collective bargaining agreement.

If an employee is temporarily laid off without a provision for this in their contract, the layoff would be considered a constructive dismissal and the employee would be entitled to seek damages for wrongful dismissal.

Wrongful dismissal charges may be avoided if the laid off employee is immediately recalled to their former position. Furthermore, some courts have found that employees who refuse to return to their position after a non-contractual layoff will be found to have failed in their duty to mitigate their damages.

If the power to perform temporary layoffs was not in written agreement at the time of hire and an employer wishes to pursue this option, they should approach their employee with a written proposal for a temporary layoff. It is possible that the employee will choose this over termination, especially since employees can usually collect Employment Insurance benefits during a layoff.

How Long Can Temporary Layoffs Last?

A temporary layoff can last up to 13 weeks in a consecutive 20-week period. However, if a layoff exceeds this 13-week period it will become a termination at which point the employee will be entitled to termination pay in lieu of notice with the first day of the layoff becoming the date of termination.

However, the ESA provides that a temporary layoff may be extended to as long as 35 weeks if:

  • The employee continues to receive substantial payments from the employer,
  • the employer continues to make payments for the benefit of the employee under a legitimate retirement or pension plan or a legitimate group or employee insurance plan,
  • the employee receives supplementary unemployment benefits,
  • the employee is employed elsewhere during the lay-off and would be entitled to receive supplementary unemployment benefits if that were not so,
  • the employer recalls the employee within the time approved by the Director, or
  • in the case of an employee who is not represented by a trade union, the employer recalls the employee within the time set out in an agreement between the employer and the employee; or

If an employee quits before a layoff is over they are not owed severance or termination packages but may still be entitled to accrued benefits such as vacation pay.

Temporary Layoff Legal Experts

Employers should always seek legal counsel before temporarily laying off an employee. To speak with an experienced employment lawyer about temporary layoffs or any other employment law matter, call KCY at LAW at (905) 639-0999 or contact us online here.

Computer Use and Time Theft At Work

We’ve all done it: snuck a peak at our Facebook timeline in between scheduling meetings; paid a phone bill online after a work call with a client; checked out a new lasagna recipe recommended by a co-worker before starting a lunch break.

Computers have become ubiquitous in the workplace and so too has their occasional use for employees’ personal purposes.

Computer Use and Time Theft At Work

For employers, catching a glimpse of Facebook’s telltale blue or personal e-mails on an employee’s office computer during working hours is frustrating. They’re supposed to be working, after all. Surfing the net isn’t what you’re paying them for!

At what point does an employee’s personal internet use during work hours become worthy of reprimand? Can an employee wasting work time browsing the internet for personal interests amount to time theft? The case of Andrews v. Deputy Head offers some sobering insights.

Andrews v. Deputy Head (Citizenship and Immigration Canada)

In this case, Franklin Andrews, a federal bureaucrat with Citizenship and Immigration Canada, drew international attention when his internet surfing at work caused a legal debate about time theft.

In 2009, after 27 years working for the government, Andrews was fired after it was discovered that he had been spending more than half of every working day surfing the internet for news, sports and even a substantial amount of porn.

Andrews appealed his termination to the Public Service Labour Relations Board. He insisted that he hadn’t been given enough work to do and was simply bored. He further pointed out that he had never missed a deadline and regularly received positive feedback about his work.

The lawyer representing the Department of Citizenship and Immigration argued that this egregious wasting of work time – and therefore taxpayer money – was as “fraudulent as falsifying a time card” and should therefore be considered time theft. The lawyer also suggested Andrews should have asked for more work if he wasn’t given enough.

The adjudicator, Kate Rogers, agreed that Andrews was in violation of workplace policies by downloading porn. However, she did not believe that he had committed time theft. She argued that frittering away time on the internet was not an overtly fraudulent act. Moreover, Rogers was astonished that such significant time-wasting had been overlooked for so long. Rogers decided that a long suspension would have been a more appropriate disciplinary action. She ordered that Andrews be reinstated immediately.

Takeaway for Employers

Employers may look at the Andrews case and despair. If the government wasn’t able to fire an employee for spending half of his working hours looking at news, sports and porn, what recourse does the average employer have to deal with improper computer use during working hours?

Cutting off internet access entirely isn’t an option in today’s business environment and blocking specific sites can be difficult to enforce. Furthermore, overbearing policies can create low morale if employees feel that they are not trusted.

Just because an employee’s computer isn’t open to a word document, spreadsheet or an Adobe product, doesn’t necessarily mean that they’re wasting your time. Employees may want to use their lunch or coffee break to browse freely. A quick peak at a photo of their nephew might be just the two-minute distraction an employee needs to reset their focus for the next two hours.

Workplace Policies Are Your Best Defense

Therefore, clear, comprehensive and well-communicated workplace policies are your best defense against improper use of workplace computers.

You’ll be hard-pressed to demonstrate that an employee went ‘too far’ in their personal internet use during work time if you don’t clearly define what appropriate and inappropriate amounts of personal internet us are.

Policies should therefore outline what is a reasonable and unreasonable amount of time to browse the internet for personal purposes and make clear what kind of content is and is not appropriate.

Workplace Policy Experts

KCY at LAW can help you create clear and enforceable workplace policies to protect your business interests while respecting your employees. Call us today at 905-639-0999 or request a consultation.