Case Studies

Disclosure

A discloser alleged that public servants committed wrongdoing as defined by paragraph 8(a) of the Public Servants Disclosure Protection Act (the Act), specifically that they contravened the Public Service Employment Act (PSEA) by influencing a selection process to appoint family members and friends to positions.

Analysis

During the case analysis stage, the case admissibility analyst assigned to the file discussed the allegations with the discloser, and assessed all the information provided against relevant legislation and policies, namely the PSEA and the Public Service Commission (PSC) Policy on Considerations for Investigations Conducted under the new PSEA by the PSC Relating to External Appointments, Non-delegated Internal Appointments and Appointments Involving Political Influence or Fraud. The analysis noted that the PSC can investigate concerns raised by individuals relating to any appointment process in which it has reason to believe that an individual has an unfair advantage in the appointment process. Therefore, it was recommended that the Commissioner not launch an investigation because the PSC could more appropriately deal with this allegation. 

Decision

The Commissioner agreed with the recommendation and decided not to launch an investigation pursuant to his authority under paragraph 24(1)(a) because the Commissioner was of the opinion that this allegation could more appropriately be dealt with by the PSC under section 69 of the PSEA. A decision letter was sent to the discloser providing the necessary information to allow for that individual to make an informed decision regarding next steps.

Considerations

Paragraph 24(1)(a) of the Act provides the Commissioner with the authority to decline to investigate a matter in which he or she believes that the disclosure could more appropriately be dealt with under another Act of Parliament. The Commissioner must weigh all aspects and considerations, which includes avoiding duplication of time and effort, as well as recognizing that other bodies have specific legal jurisdiction and specialized expertise. In this case, it was determined that the Public Service Commission has jurisdiction over the matter and more specialized expertise with respect to the interpretation to the PSEA, and is therefore better equipped to deal with these allegations.

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In this case, the discloser was not certain of what provisions of the Act applied to the case, as well as all of the options. The Office of the Public Sector Integrity Commissioner developed a useful brochure called Five questions to ask yourself before making a protected disclosure of wrongdoing that aims to assist someone who is considering making a disclosure. We are here to help you in any way possible by answering any general questions, providing more information and discussing your potential disclosure in confidence. For more information on the process of filing a disclosure of wrongdoing, please visit www.psic-ispc.gc.ca/en/online-forms.

Disclosure

A discloser made allegations against public servants concerning a departmental decision to discontinue funding an experimental project. The discloser alleged that a public servant committed wrongdoings as defined by paragraphs 8(c) (gross mismanagement) and (e) (serious breach of a code of conduct) of the Public Servants Disclosure Protection Act (the Act) by briefing management against continuing the project, which ultimately led management to cancel the project. The discloser also alleged that a public servant committed wrongdoings as defined by paragraphs 8(b) (abuse of public funds), (c) (gross mismanagement), and (d) (danger to life, health, safety of the environment) of the Act by stalling the promotion of the project and by approving the purchase of equipment that, in the discloser’s opinion, was unsuited for the project.

Analysis

During the case analysis stage, the case admissibility analyst assigned to the file noted that the discontinued project was one of many experimental projects that did not receive permanent funding within the organization.  Based on the information provided by the discloser, it was evident that management’s decision to discontinue funding of a particular experimental project and their choice around the use of equipment were departmental decisions that took many factors into account, including budgetary considerations and departmental priorities at the time.  Under paragraph 24(1)(e) of the Act the Commissioner may decide not to investigate a matter that results from a balanced and informed decision-making process on a public policy issue.  It was therefore recommended that the Office not investigate these allegations. 

Decision

The Commissioner agreed with the recommendation and decided not to launch an investigation because the department’s decision to end funding of this particular project was the result of a balanced and informed decision-making process on a public policy issue. A decision letter was sent to the discloser that explained why no investigation would take place.

Considerations

The Act, under paragraph 24(1)(e), gives the Commissioner the ability to decline investigating a matter that results from a balanced and informed decision-making process on a public policy issue. Although it is clear from the information provided to the Office that the discloser was passionate about the possibilities of this project, choices around the use of experimental equipment are policy decisions and within the scope of authority of public sector organizations. In general, the Act allows the Office to investigate and make recommendations on the manner in which policies are implemented, if that implementation creates or constitutes a possible wrongdoing. However, the Act does not authorize the Office to rule on the appropriateness or sufficiency of properly created government policies, as seen in this particular case. In this case, the allegations could not be defined as wrongdoing under the Act (section 8). 

We are here to help. You can contact us anytime.

If you are unsure whether your allegation meets the definition of wrongdoing, we are here to help you in any way possible by answering any general questions, providing more information and discussing your potential disclosure in confidence. There are also a number of internal resources that can help resolve many issues within your organization, which we have included in our brochure called Five questions to ask yourself before making a protected disclosure of wrongdoing.

Disclosure

The discloser alleged that a public servant had committed wrongdoing under section 8 (d) of the Public Servants Disclosure Protection Act (substantial and specific danger to life, health or safety) by failing to accommodate a disability, which impacted his health.

Analysis

During the analysis stage, it was noted that due to a previously-sustained injury, the discloser needed accommodation to relieve physical pain. Accommodation was granted, but the discloser felt it was insufficient. Despite this assertion, there was no indication that performing his duties would have created a substantial and specific danger to his life, health or safety. The definition of wrongdoing under section 8 (d) includes the qualifiers “substantial and specific”. This means that less serious situations, where the possibility of creating a danger is somewhat remote, should not be qualified as 'wrongdoing' under the Act. Further, as the pain was a result of a previously-sustained injury, it could not be attributed to an act or omission caused by his supervisor. Therefore, it was recommended that the Commissioner not launch an investigation because the subject-matter was not considered wrongdoing under the Act. 

Decision

The Commissioner agreed with the recommendation and decided not to launch an investigation based on his authority under paragraph 24(1)(f) as the subject-matter could not be considered wrongdoing under the definition of the Act. A decision letter was sent to the discloser explaining a rationale as to why no investigation would be launched. 

Considerations

Under paragraph 24(1)(f), where the Commissioner has a valid reason, he may refuse to deal with a disclosure or launch an investigation. In this case, it was clear that the subject-matter of the disclosure did not concern an act or omission that created a substantial and specific danger to life, health or safety. It therefore could not be considered wrongdoing under the Act. Further, this case could have been better dealt with under a collective agreement / grievance procedure.

We are here to help. You can contact us anytime.

If you are unsure whether your allegation meets the definition of wrongdoing, we are here to help you in any way possible by answering any general questions, providing more information and discussing your potential disclosure in confidence. Depending on your particular situation, legislated timeframes may apply (i.e. grievance, appeal, etc.); do not delay in getting informed. There are also a number of internal resources that can help resolve many issues within your organization, which we have included in our brochure called Five questions to ask yourself before making a protected disclosure of wrongdoing. 

Disclosure

The discloser alleged that a public servant – one of her colleagues – had committed wrongdoing under section 8(e) of the Public Servants Disclosure Protection Act (serious breach of a code of conduct) by sending e-mails with discriminatory or sexist undertones to other employees.

Analysis

Based on the facts collected at the case analysis stage, it was determined that the disclosure should be investigated. During the investigation, the discloser provided two dozen e-mails she deemed contained discriminatory or sexist wording that had been sent to colleagues by the alleged wrongdoer. A few of these e-mails appeared to be humorous excerpts circulating on the Internet, though one had a sexist or discriminatory undertone and would be deemed inappropriate in a professional setting. In addition to the disclosure received by our Office, a complaint was made to the alleged wrongdoer’s manager. The latter had contacted the individual as part of the complaint process and obtained an assurance that he would be more cautious in the language contained in future e-mails to colleagues to ensure he respected the Treasury Board of Canada Values and Ethics Code for the Public Sector, as well as Policy on Acceptable Network and Device Use and Policy on Harassment Prevention and Resolution. In examining the e-mails, the investigator determined that though one message contained inappropriate language, the practice could not be described as a “serious” breach of the code of conduct under the Act. Further, as the individual’s manager had taken corrective measures to ensure the action would not be repeated, the investigator deemed the issue had been appropriately dealt with. Therefore, it was recommended that the Commissioner cease the investigation as the subject-matter was not sufficiently important and as there was a valid reason for ceasing the investigation given remedial action had been taken.

Decision

The Commissioner agreed with the investigator’s recommendation to cease the investigation under paragraph 24(1)(b) of the Act (subject-matter of the disclosure or investigation not sufficiently important) and under paragraph 24(1)(f) of the Act (valid reason) as the issue had appropriately been dealt with internally. A letter to that effect was sent to chief executive and alleged wrongdoer, as well as to the discloser.

Considerations

Under paragraphs 24(1)(b) and (f), the Commissioner may cease an investigation if he is of the opinion that the investigation is not sufficiently important or if he has a valid reason. In this case, the subject-matter of the disclosure related to an isolated incident in which one inappropriate e-mail was sent by the alleged-wrongdoer; none of the other e-mails brought to the attention of the investigator by the discloser were deemed improper. Further, as the department (via the manager) had already dealt with the situation by discussing the issue with the alleged wrongdoer and reminding him of his obligations under the code of conduct and various policies, there was a valid reason to cease the investigation.

Complaint

The complainant felt that he had suffered reprisal from his supervisor as a result of having made a harassment complaint against him a few months before.  More specifically, his harassment complaint was that he had approached his director to raise concerns about how his supervisor was making degrading and offensive comments about him during their bilateral meetings and repeatedly refused his requests for leave with no justification.  The complainant was subsequently removed from important projects. He then made a complaint of reprisal to the Office of the Public Sector Integrity Commissioner alleging that he was suffering from reprisal as a result of having made an individual harassment complaint. 

Analysis

During the case analysis stage, the PSIC analyst noted that the harassment allegations concerned only the supervisor’s behaviour towards the complainant. Despite the importance of the matter, there is nothing to indicate that the complainant had made a protected disclosure as intended under the Act. The analyst therefore concluded that the harassment allegations did not concern the type of wrongdoing that the Act was intended to address. Since the complainant did not make a protected disclosure of wrongdoing as understood under the Act, the analyst recommended that the Commissioner not launch an investigation.

Decision

The Commissioner agreed with the recommendation and decided not to launch an investigation under paragraph 19.3(1)(c) of the Act, since the complaint fell outside of his jurisdiction.
 

Considerations

Under paragraph 19.3(1)(c) of the Act, the Commissioner may refuse to deal with a complaint of reprisal if he believes that the complaint is outside his jurisdiction. When a reprisal measure is alleged to have been taken because an individual believes he made a protected disclosure of wrongdoing, the Commissioner may only investigate if the information disclosed concerned wrongdoing as understood under the Act.

The Federal Court of Canada has held that that the purpose of the Act is to address wrongdoing “of an order of magnitude that could shake public confidence if not reported and corrected” and that poses “a serious threat to the integrity” of the federal public sector”. The Act is generally not intended to address matters of a personal nature, such as individual harassment complaints. Since in this case the alleged disclosure concerned only a personal matter, the complainant’s disclosure did not concern wrongdoing as understood under the Act. The complainant’s disclosure was therefore not protected by the Act. The complaint of reprisal was therefore outside of the jurisdiction of the Commissioner.

Note: The Treasury Board Secretariat Policy on Harassment Prevention and Resolution and its supporting Directive provides measures to address retaliatory acts as described in the complaint portion of this case study.

We are here to help. You can contact us anytime.

If you are unsure whether the information you disclosed concerns wrongdoing under the Act, we can help by answering general questions, providing more information and discussing your disclosure in confidence. You may also wish to consult our list of other bodies that may be able to address your complaint.