Public Interest Disclosure Act Guide

The Public Interest Disclosure Act (PIDA) encourages employees in the provincial public service (departments, agencies, school districts, regional health authorities, and crown corporations) to come forward if they believe that wrongdoing has occurred or is about to occur in the workplace. The Act protects against reprisal and provides a fair and objective process for those accused of wrongdoing.

If an employee feels that wrongdoing could be taking place, they should use the provisions in the Act to come forward and to feel protected in doing so. Employees can make a disclosure to their supervisor, the designated officer in their organization or to the Ombudsman.
 

PIDA encourages you to come forward if you believe that serious wrongdoing has occurred or is about to occur in the workplace. It protects you from reprisal if you do come forward in good faith, it provides a fair and objective process for those who are accused of wrongdoing, and it protects the confidentiality of all those involved in the disclosure process.

Employees in most organizations have a choice of three safe and confidential methods for making a disclosure of wrongdoing: to your supervisor, to your designated officer in the organization, or to the Ombudsman.

The disclosure process is confidential. Your identity and other information regarding a disclosure will be protected, to the extent possible under applicable laws.

PIDA contains strong measures to protect you from reprisal if you make a disclosure in good faith. The Labour and Employment Board has the power to determine if a reprisal has occurred and order corrective action, such as compensation, as well as disciplinary action for those found to have taken the reprisal action.

An employee who commits a wrongdoing is subject to appropriate disciplinary action, including termination of employment as well as any sanctions provided for by law.  At the same time, an employee who makes a frivolous, vexatious or bad faith disclosure is also subject to appropriate disciplinary action including termination of employment or other sanction provided for by law.

Should a disclosure lead to an investigation, it will be conducted in a fair, timely and expeditious manner.  The designated officer and/or the Commissioner will make every effort to ensure an investigation is completed within three months.
 

The Act defines wrongdoing as:

a. an act or omission constituting an offence under an Act of the Legislature or the Parliament of Canada, or a regulation made under an Act;

b. an act or omission that creates a substantial and specific danger to the life, health or safety of persons, or to the environment, other than a danger that is inherent in the performance of the duties or functions of an employee;

c. gross mismanagement, including of public funds or a public asset;

d. knowingly directing or counseling a person to commit a wrongdoing described in paragraphs (a) to (c).

The definition of wrongdoing relates to serious violations that go against public interest or those of the organization.

If you are unsure if a situation could constitute wrongdoing, contact your supervisor, your designated officer, or the office of the Ombudsman. However, the following questions are important to ask yourself when considering a situation:

• Does this situation affect the public interest? If so, disclosure may be the appropriate channel.
• Is this about a human resources issue, such as staffing, a collective agreement matter, or harassment? If so, talking with your supervisor or your human resources advisor may be the most appropriate starting point.
   

Designated officer – the senior official designated under section 7 of the Act to receive and deal with disclosures.

Discipline for Wrongdoing – An employee who commits a wrongdoing is subject to appropriate disciplinary action, including termination of employment, in addition to and apart from any other sanction provided for by law.

Disclosure – means a disclosure made in good faith by an employee in accordance with this Act.

Reprisal – means any of the following measures taken against an employee because the employee has, in good faith, sought advice about making a disclosure, made a disclosure, or cooperated in an investigation under this Act:

(a) a disciplinary measure;
(b) a demotion;
(c) termination of employment;
(d) any measure that adversely affects his or her employment or working conditions;
(e) a threat to take any of the measures referred to in paragraphs (a) to (d).
 

Most organizations must set up an internal disclosure mechanism so that you have three choices for making a protected disclosure:

• To your supervisor; 
• To your organization’s designated officer; or 
• To the Ombudsman.
  

If your organization is small, a designated officer may not have been assigned. In this situation, the chief executive is the designated officer.

When making a disclosure you must include the following information, if known:

• A description of the wrongdoing; 
• The name of the person or persons alleged to have committed the wrongdoing or about to commit the wrongdoing; 
• The date of the wrongdoing; and 
• Whether the wrongdoing has already been disclosed and a response received.
  

Your disclosure must be in writing and signed. Remember, your information will be kept confidential.

A disclosure made to the public, such as the media, will only be protected if the situation is urgent. The matter of wrongdoing must pose an imminent risk of a substantial danger to the life, health or safety of people or to the environment and the employee feels that there is not enough time to make a disclosure under the Act. In these situations, the employee should first make the disclosure to the appropriate law enforcement agency or to the chief medical officer in health-related matters. Immediately after a public disclosure is made, the employee must also make a disclosure about the matter to his or her supervisor or the organization’s designated officer.

Disclosures made to your supervisor

You may decide that it is appropriate to make a disclosure to your supervisor.

Your supervisor may look into the matter or refer the disclosure to your organization’s designated officer or the Conflict of Interest Commissioner.

Your supervisor is required to protect your identity and the information related to your disclosure to the extent possible and to act within his or her authority to protect you from reprisal.

Disclosures made to your organization’s designated officer

You can also make a disclosure to your organization’s designated officer.

The designated officer will protect your identity and that of others involved in the disclosure process to the extent possible.

The designated officer will review your disclosure to determine if there are sufficient grounds to investigate. He or she will inform you in writing if there will be no further action.

If an investigation takes place, the designated officer will ensure that the investigation respects the rights of all those involved. Cases concerning criminal activity will be referred to the appropriate law enforcement authority.

The Senior Officer will review the results of the investigation, prepare recommendations for action and report these directly to the chief executive of your organization.

Finally, he or she will inform you in writing of the results of the investigation and the action that will be taken in response.

Disclosures made to the Ombudsman

Should you choose you can go directly to the Ombudsman to make a disclosure or to seek advice. There is no requirement that you first make a disclosure within your organization.

If you made a disclosure within your organization and you do not believe it was adequately dealt with, you may make a subsequent disclosure to the Ombudsman.

The Ombudsman has the authority to investigate, report his or her findings, make recommendations on corrective measures to the chief executive concerned and review reports on measures taken in response to his or her recommendations.

Subject to applicable laws, information including your identity and that of others involved will be protected by the Ombudsman.

The Ombudsman has the right to refuse to deal with a disclosure or to start an investigation, and to stop an investigation, if he or she believes that, the matter should be dealt with under another process, the matter does not meet the definitions of the Act, or the disclosure wasn’t made in good faith.

You should be aware that when starting an investigation, the Ombudsman will inform the chief executive concerned about the substance of the disclosure and may also notify others about the investigation, including those whose acts or conduct has been called into question.

Upon completion of an investigation, the Ombudsman will write a report containing his or her findings and any recommendations about the disclosure and the wrongdoing. The report will be provided to the employee and the organization’s chief executive.

The Ombudsman will also make an annual report to the Legislative Assembly. This report will contain the number of general inquiries received, the number of disclosures received including the number acted on or not acted on, the number of anonymous claims filed and the number of claims referred to the Office of the Ombudsman.
 

Categories of Wrongdoing

The Public Interest Disclosure Act is intended to apply to significant and serious wrongdoing in the New Brunswick public service that is potentially unlawful, dangerous to the public or injurious to the public interest.
It is not intended to deal with routine operational or human resource matters. The Act is also not intended to provide another venue for employees whose relationship with their employer may be in dispute under a collective agreement or employment agreement as a result of human resource issues.
If you have a concern about such matters, you should follow existing procedures to deal with these issues.

Is the matter:

If you answered yes to any of the above, then you can make a disclosure under the Act. You may make this disclosure to your supervisor, the designated officer in your organization, or the Ombudsman.

What to include in your disclosure

Your disclosure must be in writing and signed.  The disclosure process is confidential. Your identity and other information regarding a disclosure will be protected, to the extent possible under applicable laws.

The disclosure should contain as much information as possible that you are aware of, including:

• A description of the wrongdoing;
• The name of the person or persons involved in the wrongdoing;
• The date of the wrongdoing; and
• Whether this matter has already been disclosed and a response received (e.g.  If you previously made a disclosure to a designated officer and are now making a disclosure to the Ombudsman).

If you are unsure of whether or not the matter is a wrongdoing you can contact your designated officer or the Ombudsman to discuss the matter.  However, the final disclosure must be made in writing and signed as set forth in the Act.

You may choose to make your disclosure in the format of your choosing or by using the following guide to making a disclosure.
 

PIDA ensures that you are protected against reprisal if you have made a disclosure in good faith or sought advice about making a disclosure.

If you feel a reprisal has been taken, you may file an official complaint with the Labour and Employment Board using the appropriate forms.

If the Board accepts to deal with the complaint an adjudicator will be appointed to hear the case.

The adjudicator’s decision will be provided within 30 days of the complaint being heard. 

Should the adjudicator find that reprisal has occurred, he or she may order a range of actions, including reinstatement and compensation.

While PIDA does protect your identity, if, for some reason, it becomes known in the workplace that you have made a disclosure, you (with your agreement) may be temporarily reassigned to protect you from potential reprisal, or the subject of your disclosure may be temporarily reassigned.
 

For more specific information and advice, consult your organization’s designated officer, the Department of Human Resources – Human Resource Talent, Policy & Programs Division at (506) 453-2264 or the Office of the Ombudsman at (506) 453-2789 or by e-mail at [email protected]