Whistleblowing: US, UK and Australian Models

Posted by Johannes Schenk on November 28th, 2005 — Posted in Employment Law, Labour Law, Municipal Law

I bumped into this useful summary of the US, UK and Australian whistleblowing regimes. It makes for an interesting read in light of the Supreme Court of Canada’s recent Merk decision.

Whistleblowing: Lawful Authority

Posted by Johannes Schenk on November 26th, 2005 — Posted in Employment Law, Labour Law, Municipal Law

The ability of an employee to speak out on workplace impropriety without fear of retribution has important implications that transcend the workplace and into society as a whole. Think of the recent organizational failures that might have gone in a more positive direction: Bre-X, Enron, Arthur Andersen, NASA, Wakerton, but to name a few. These failures range in magnitude, span various industries and involve financiers and public servants through to engineers. The two constants are the spectacular nature of the failure and the squelched voice that might have led to a different outcome.

The Supreme Court of Canada, on November 24, 2005, dealt with Saskatchewan’s whistleblowing provisions in Merk v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, 2005 SCC 70. Ms. Merk was working for local 771 as a bookkeeper and became aware of certain financial improprieties. She reported the matter to her superiors all to no avail. Eventually she reported the matter to the union president resulting in the local firing her.

The issue centered on the protection afforded to a worker by s. 74 of the Saskatchewan Labour Standarads Act, reporting a matter to a “lawful authority”. Simply put, did you have to go to the police or was the union president good enough to trigger the s.74 protection?

The Supreme Court found that the protection was triggered by an “up the ladder” approach within an organization and did not require an employee to approach an authority akin to the police. Justice Binnie states this at paragraph 36:

36 The interpretation of s. 74 adopted by the Saskatchewan Court of Appeal would discourage the internal resolution of alleged misconduct by withholding whistleblower protection unless and until the employee goes “outside” to the enforcement authorities of the state. For the reasons given, I believe its interpretation of “lawful authority” is too narrow. Section 74 protection should be extended to employees who first blow the whistle to the boss or other persons inside the employer organization who have the “lawful authority” to deal with the problem. If the problem is not resolved internally, then employees can go “outside” to the police or another enforcement agency, but in order to obtain the protection of s. 74, it is not necessary that they do so.

This is an important decision that broadens the protection afforded to workers under whistleblowing provisions and must be considered when looking at similar provisions in the various legislative regimes that apply to such matters.

Privacy Cases: Biometric Identification

Posted by Johannes Schenk on November 24th, 2005 — Posted in Employment Law, Human Rights Law, Labour Law

The world is a changing place with the present and breathtaking changes in technology. Miniature video cameras, cellphone cameras, server mining, phishing, e-mail monitoring, and let’s not forget crafty investigative services. Employers and employees have a lot to think about in how they wish to use and respond to these ever expanding technologies.

And what’s next: Biometrics.

And to some extent it’s happenning here. Look at these two case:

Can you say “hello HAL”?

It’s obvious that the real and perceived security issues faced by the US and the UK are factors behind their move towards biometrics. Employers in these countries are riding on that wave. It will be interesting to watch over the next decade or so how the Canadian labour community approaches and responds to the availabiltiy of these technologies in comparison.

Employer Vicarious Liability for Employee Conduct

Posted by Johannes Schenk on November 22nd, 2005 — Posted in Employment Law, Labour Law, Municipal Law

An employer’s responsibility for employee conduct is a hot topic these days with the Supreme Court of Canada speaking repeatedly to the point over the last several years.

Two recent decisions dealing with an employer’s vicarious liability are Blackwater v. Plint, [2005] SCC 60 and E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia, [2005] SCC 58. The cases are based on the very unfortunate residential school abuse scenario. The underlying theory of the cases being that there has to be a significant connection between the perpetrator’s job/authorized conduct and the misconduct to warrant a finding of employer vicarious liability.

These two cases follow on the heels of:

Those cases deal with the various permutations of vicarious liability, breach of fiduciary duties, negligence, statutory defences, non-delegable duties and liability for the acts of independent contractors.

Compare then the approach taken in Dunn, Lisa v. Washington City Hospital (05-1277), a recent decision of the Seventh Circuit Court of Appeal. This case deals with an independent contractor’s sexual harassment in the workplace. Better yet you can listen to the oral argument here.

Workers Compensation Fraud

Posted by Johannes Schenk on November 20th, 2005 — Posted in Employment Law, Labour Law

I came across this California Department of Insurance press release on WCB fraud. Apparently, WCB fraud doesn’t go over well in the Golden State with this worker receiving jail time.

WCB fraud in Canada can also result in criminal prosecution as in this case from Nova Scotia.