The Whistleblower Defence to Employment Dismissal
A half century ago, an English jurist described the employee's legal duty of loyalty to the employer in the following terms: "(an employee) is expected to give, and with very few exceptions does give in full measure the qualities of loyalty and discretion. He is not to obtrude his opinion unless it is invited, but when it is needed he must give it with complete honesty and candour. If it is not accepted, and a policy is adopted contrary to his advice, he must and invariably does, do his best to carry it into effect, however much he may privately dislike it. If it miscarries, he must resist the human temptation to say, "I told you so;" it is still his duty, which again he invariably performs to save his (employer) from disaster, even if he thinks that disaster is deserved." In Fraser v. Public Service Staff Relations Board, the Supreme Court of Canada said "federal public servants should be loyal to their employer" except that where health, security, or life are endangered, criticism may be "actively and publicly expressed," although not "sustained and highly visible" against the government. Building upon Fraser and Haydon v. Canada, arbitrators have crafted nine factors to consider in cases where public criticism by an employee was disciplined by the employer. "Petty dissidents" and those who criticize without "substantial concern for others" will suffer less protection from employer discipline. The threshold of reportable wrongdoing is a major practical issue which may hinder the development of the law: what to do about mere troublemakers? The less serious the wrong, the less compelling and justifiable will be the disclosure. In legislation protecting whistleblowers, the wrongdoing that gives rise to protection from retaliation is specifically defined.
Brierton, T. D.,
The Whistleblower Defence to Employment Dismissal.
Law Now, 32(2), 31.