DFO Internal Procedures on Disclosure of Wrongdoing

(Publié aussi en français sous le titre Mécanismes internes de divulgation d’actes répréhensibles au MPO)

Preamble

Consistent with Canadian democratic traditions and values, our Governments are elected by citizens to define and to serve the public interest. Employees of the Government of Canada, play an important role in ensuring that the democratic framework of our society is upheld by serving the government of the day with neutrality. In this way, DFO employees play a fundamental role in serving the public interest.

Through the Public Servants Disclosure Protection Act (PSDPA), Parliament has declared its intention to strengthen the competence and integrity of the federal public service.

The PSDPA states “The Minister must promote ethical practices in the public sector and a positive environment for disclosing wrongdoings...” The PSDPA applies to all public servants, more specifically to “every person employed in the public sector.”

The purpose of the PSDPA is to encourage employees in the public sector to come forward if they have reason to believe that serious wrongdoing has taken place or is about to take place, and to provide protection to them against reprisal when they do so. It also provides a fair and objective process for those against whom allegations are made.

Good implementation of the PSDPA in the public sector should result in:

  1. Enhanced ability for organizations to identify and resolve disclosures and prevent reprisals;
  2. Public servants who feel supported and are protected from reprisals when they disclose a wrongdoing;
  3. Leaders who foster and model ethical leadership and inspire employees to do the right thing;
  4. A sustained and supported ethical culture in a workplace of choice; and
  5. Increased public trust and confidence in public sector organizations.

At DFO, the emphasis is on the promotion of a culture of open communication where issues and concerns as well as misconduct can be dealt with via normal interaction. The PSDPA is not meant to replace day-to-day management of misconduct at DFO. Rather, the Act and the internal disclosure procedures provide an alternative to help public servants to come forward and get protected in case of serious wrongdoing as defined under the Act (see definition below).

As such, the Deputy Minister of Fisheries and Oceans (DM) has designated a Senior Officer for disclosure at DFO, the Executive Director of the Centre for Values, Integrity and Conflict Resolution (VICR), to whom a public servant may turn to disclose information concerning wrongdoing in the workplace.

Effective Date

The effective date of the DFO internal procedures on disclosure of wrongdoing is March 1st, 2010.

Objective

The objective of these DFO internal procedures on disclosure of wrongdoing is to assist all employees (including management) in making disclosures of wrongdoing at DFO in the context of the PSDPA. These procedures complement the PSDPA and should be read in unison with it.

Definitions

Confidentiality (confidentialité) – The DM must, subject to any other Act of Parliament and to the principles of procedural fairness and natural justice, protect the identity of persons involved in the disclosure process, and establish procedures to ensure the confidentiality of information collected.

Protected disclosure (divulgation protégée) – A disclosure that is made in good faith by a public servant, in accordance with PSDPA, to one of the people mentioned below. It is the disclosure of any information that the public servant believes could show that a wrongdoing has been committed or is about to be committed, or that could show that the public servant has been asked to commit. In order for the disclosure to be protected, the public servant must disclose either to his or her supervisor, or that person’s supervisor, the departmental Senior Officer for disclosure (VICR) or the Public Sector Integrity Commissioner (PSIC). The public servant does not have to exhaust internal avenues before going to the PSIC.

Public servant (fonctionnaire) – ‘Public servant’ has a broader meaning than that of “employee” in the Public Service Labour Relations Act. A public servant is “every person employed in the public sector”. (i.e. full and part time, students, casuals, etc.)

Reprisal (représailles) – Any of the following measures taken against a person because he/she made a protected disclosure or has cooperated in good faith in an investigation with regards to a disclosure: disciplinary sanction, demotion, termination of employment or any other measure that adversely affects the employment or working conditions of that person. It includes a threat to take any of these measures or ordering someone to take them.

Wrongdoing (acte répréhensible) is defined as follows:

  1. a contravention of any Act of Parliament or of the legislature of a province or of any regulations made under any such Act;
  2. a misuse of public funds or a public asset;
  3. a gross mismanagement in the public sector;
  4. an act or omission that creates a substantial and specific danger to the life, health or safety of persons, or to the environment;
  5. a serious breach of the public sector Code of Conduct or DFO’s Code of Conduct (coming soon);
  6. Knowingly directing or counselling a person to commit a wrongdoing set out in any of paragraphs (a) to (e).

As a general rule, a protected disclosure must relate to a wrongdoing against the public interest as opposed to wrongdoing against a personal interest, i.e. against an individual as victim. In the first instance, the person making the disclosure is more of a witness than a victim of a wrongdoing.

Application

These internal procedures on disclosure of wrongdoing apply to all public servants disclosing a wrongdoing at DFO and at the Canadian Coast Guard (CCG).

Responsibility and Authority

The primary responsibility and authority for the application of the PSDPA and these internal procedures on disclosure of wrongdoing rests with the Deputy Minister of Fisheries and Oceans Canada (DM).

Overview of the Act

Reprisal Protection Measures

The Deputy Minister, the Senior Officer (VICR) and departmental supervisors play an important role in ensuring the protection of employees against reprisal. With a view to preventing reprisals, DFO will:

  1. provide information to all employees to raise awareness about the PSDPA;
  2. offer to all supervisors and directors learning opportunities which will permit them to understand the steps which an employee who wants to make a disclosure must undertake;
  3. respect and protect the confidentiality of the person who has made the disclosure and of the witness(es) when conducting an investigation by taking all necessary measures to safeguard their identity, to the extent possible, while respecting the principles of procedural fairness and natural justice;
  4. if the identity of a discloser or a witness has become known in the workplace, take measures to prevent possible reprisals.

Reprisal Protection Process

It is important to note that the PSDPA states “Every reference in this Act to a person who has taken a reprisal includes a person who has directed the reprisal to be taken.”

The PSIC is the only formal route under the PSDPA for employees to complain if they believe that reprisal has been taken against them as a direct consequence of making or having been involved, in good faith, in a protected disclosure. However, employees who believe themselves the victim of a reprisal may also raise the matter with their supervisor or the Senior Officer (VICR) as an informal route who will look at the complaint and may launch an investigation.

The Senior Officer (VICR) will provide advice regarding options to any employee who believes he/she has suffered reprisal or is still in such a situation. The Senior Officer will also recommend to the DM the appropriate action with respect to corrective measures.

The fact that an employee’s disclosure is screened out for any reason does not preclude an employee from filing a complaint of reprisal. Employees should note that under PSDPA, a complaint of reprisal must be filed to the PSIC within 60 days of the time they knew or should have known that the reprisal occurred. Employees involved in a disclosure of wrongdoing may be temporarily re-assigned, with their concurrence, to protect them from reprisal.

If the PSIC decides to deal with the complaint, an investigator will be designated. At any time during the course of the investigation, the investigator may recommend to the PSIC that a conciliator be appointed to attempt to bring about a settlement.

After receiving the investigation report, if the PSIC is of the opinion that it is warranted, he/she may apply to the Public Servants Disclosure Protection Tribunal for a determination of whether or not a reprisal was taken against the complainant and order remedial action.

On application by the PSIC, if the Tribunal determines that a reprisal occurred, it can order remedial action, including:

  1. permit the complainant to return to his or her duties;
  2. reinstate the complainant or pay compensation in lieu of reinstatement if the relationship of trust between the parties cannot be restored;
  3. pay to the complainant compensation in an amount not greater than the amount that is equivalent to any financial or other penalty imposed on the complainant;
  4. rescind any disciplinary action;
  5. pay the complainant an amount equal to any expenses or other financial losses incurred as a direct result of the reprisal;
  6. compensate the complainant by an amount of not more than $10,000, for any pain and suffering experienced as a result of the reprisal.

The Tribunal can also order disciplinary action against persons determined to have taken a reprisal.

The PSIC can refuse to deal with a complaint of reprisal for the following reasons:

  1. the complaint has already been properly and adequately dealt with or it would be better addressed through another mechanism;
  2. the complaint is beyond the jurisdiction of the Commissioner; or,
  3. the complaint was not made in good faith.

Public servants may choose to deal with the matter of reprisal through a grievance or other recourse, if applicable, but they cannot cumulate their recourses.

Confidentiality

Throughout the entire disclosure process, the Senior Officer (VICR) will protect, to the extent possible and subject to the principles of procedural fairness and natural justice, information and the identity of persons involved in the disclosure process, including that of persons making disclosures, witnesses and persons alleged to be responsible of wrongdoings.

This will be done by:

  1. restricting the information on disclosures, to a limited number of people, on a need-to-know basis;
  2. providing for a dedicated and confidential disclosure telephone access number and disclosure email address;
  3. using the new provisions under the Access to Information and Privacy Acts accordingly.

Once a disclosure is made, the person who made the disclosure shares in the responsibility to maintain confidentiality as well. Failure to protect confidentiality may affect the integrity of any investigation into the disclosure.

Even though it is rejected or determined to be unfounded, a disclosure is still treated as confidential as long as it is a protected disclosure.

Disclosure of information concerning criminal activity or actions cannot be kept confidential. They will be referred to the proper authorities for investigation and confidentiality in such circumstances will be subject to the applicable regime.

Access to Information and Privacy Considerations

The Access to Information Act and the Privacy Act contain mandatory, permanent exemptions related to the PSDPA. They respectively contain provisions to the effect that records containing information or personal information that was created for the purpose of making a disclosure or in the course of an investigation into a disclosure of wrongdoing are permanently protected and cannot be released.

For more information, please consult the “Guide to Access to Information and Privacy Considerations under the Public Servants Disclosure Protection Act prepared by the Treasury Board of Canada Secretariat.

Public Disclosure

A public servant may make a public disclosure only if there is not sufficient time to make the disclosure using the internal or independent Public Sector Integrity Commissioner processes and the public servant believes on reasonable grounds that there is a breach of federal or provincial laws, or an imminent risk of a substantial and specific danger to the life, health and safety of persons, or to the environment. Disciplinary measures may be taken should these conditions not be respected by a public servant.

Legal Advice

The PSIC may provide free legal advice to any person involved in proceedings under the PSDPA or in a reprisal protection process up to an amount of $1500 ($3000 under exceptional circumstances).

Internal Disclosure Process

Who to Contact Regarding Wrongdoing

DFO employees simply seeking advice concerning wrongdoing, or wishing to report a disclosure of wrongdoing have a choice of three channels:

An employee reporting a disclosure of wrongdoing may be accompanied at any time during the disclosure process by another person (trusted colleague, friend, union representative, etc.) but must make the disclosure him or herself.

The Senior Officer (VICR) provides advice and guidance to a public servant who is considering making a disclosure.

Step One – Disclosure of Wrongdoing

All supervisors who receive a disclosure of wrongdoing in DFO or CCG are required to promptly transfer it to the Senior Officer (VICR) for screening and follow up in order to properly and consistently apply the legislation and advise the discloser of this transfer.

The discloser must clarify the allegations in sufficient factual detail to allow the Senior Officer (VICR) to determine the nature and substance of the alleged wrongdoing. The employee does not need to provide proof. Any disclosure of wrongdoing should contain the following information, as a minimum:

Once the Senior Officer (VICR) has received a disclosure of wrongdoing, he or she will, within one week, send the discloser a letter of acknowledgment, informing them that he or she is looking into the matter.

The Senior Officer (VICR) will explain the PSDPA to the discloser and the protection it provides against reprisals, including making him or her aware of these procedures.

Step Two – Screening and Preliminary Assessment

The Senior Officer (VICR) will perform initial screening and preliminary analysis of the information received through the disclosure, apply the PSDPA definition of wrongdoing and determine if there is sufficient grounds for further actions.

During the course of preliminary assessment, the Senior Officer may:

  1. determine if the nature of the wrongdoing requires prompt or immediate action;
  2. reject the disclosure;
  3. choose to initiate an informal review, attempt at resolution and/or conduct an investigation.

The Senior Officer (VICR) may refuse to deal with a disclosure or begin an investigation – and he or she may cease an investigation – if he or she is of the opinion that:

  1. there are no sufficient grounds to deal with the disclosure;
  2. the subject matter of the disclosure or the investigation has been adequately dealt with, or could more appropriately be dealt with, according to another process;
  3. the subject matter of the disclosure is not sufficiently important;
  4. the disclosure was malicious, vexatious or not made in good faith (disciplinary measures may be taken against the public servant);
  5. the length of time that has elapsed since the date when the subject-matter of the disclosure arose is such that dealing with it would serve no useful purpose;
  6. it relates to a matter that results from a balanced and well informed decision making process on a public policy issue or;
  7. there is a valid reason for not dealing with it.

The Senior Officer informs the employee who made the disclosure, in writing, of the screening decision, including the reason for this decision and next steps.

As above-mentioned in the Protection from reprisal process section, the fact that a disclosure is screened out for any reason does not preclude an involved employee from filing a complaint of reprisal.

Step Three – Investigation

Once a preliminary assessment of the information has been conducted and the disclosure has been accepted, the Senior Officer (VICR) may initiate an informal review, attempt at resolution and/or launch an investigation.

If the Senior Officer (VICR) decides to investigate the matter described in the disclosure, he or she will choose, mandate, and manage the investigator(s), in adherence to the requirements of the PSDPA. While investigations will be carried out as quickly as possible, rigour will not be sacrificed in the name of expediency.

Once an investigation is complete, the Senior Officer (VICR) reviews the findings of the investigation and provides a report for the DM and the Case Management Committee*, when applicable. The Senior Officer, with the Case Management Committee, reviews the findings and makes recommendations to the DM on corrective measures. The DM will then make the final determination.

* Case Management Committee Members: Deputy Minister; ADM, Corporate Services; Deputy Commissioner, Canadian Coast Guard; Director General, Real Property Safety and Security; Director General, Human Resources; Departmental Security Officer; Director of Labour Relations; Executive Director, Centre for Values, Integrity and Conflict Resolution; Advisor, Legal Services

Step Four – Communication of Disclosure Outcome

Once an investigation has been finalized and approved, the individual making the disclosure and other relevant parties, will be notified in writing of the outcome of the investigation and of the actions taken.

Corrective action included steps to be taken to fix the problem and to minimize the potential for reoccurrence of the wrongdoing, and may include such actions as establishing the checks and balances, modifying policy and/or procedures, and conducting training.

Step Five – Reporting

If a disclosure which is made to a supervisor or the Senior Officer (VICR) leads to a finding of wrongdoing, the DM must promptly:

  1. provide public access to information that describes the wrongdoing (removing personal information unless it is needed to understand the wrongdoing);
  2. indicate any recommendations that result from the finding of wrongdoing; and
  3. report on any corrective action taken as a result of the wrongdoing, or explain why no corrective action was taken.

This information will be posted on DFO’s Internet site.

Reporting this information is in addition to the annual requirement to report to the Treasury Board of Canada Secretariat within 60 days of the end of the fiscal on activity under the PSDPA. The Senior Officer (VICR) is responsible for tracking cases of disclosures as part of the annual reporting process.

All documentation and evidence shall be retained by the Senior Officer (VICR).

Disclosure of Wrongdoing to the PSIC

Any person can provide information about a wrongdoing in or relating to the public sector to the PSIC.

When a public servant makes a disclosure to the PSIC, the latter may refuse the disclosure or investigate the alleged wrongdoing if s/he deems it necessary pursuant to the information provided. The commissioner then reports the findings and makes recommendations on corrective measures to the DM at DFO.

Inquiries

Please refer all inquiries concerning these internal procedures on disclosure of wrongdoing to the Senior Officer, VICR.

To obtain general information with regards to disclosure, you can consult:

Contact at DFO

The Senior Officer for confidential disclosure of wrongdoing at DFO is:

Shauna Guillemin,
Director, Centre for Values, Integrity and Conflict Resolution and
Senior Officer for Disclosure of Wrongdoing

Shauna Guillemin
Centre for Values, Integrity and Conflict Resolution
200 Kent Street, 15th Floor (15W064)
Ottawa, Ontario K1A 0E6

Contact regarding formal Complaints of Reprisal

Public Sector Integrity Commissioner
60 Queen Street, 7th Floor
Ottawa ON K1P 5Y7

References