Monday, June 04, 2012 - Filed in: Court Cases
Supreme Court broadened whistleblower protection.
In Merk v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, Merk alleged that the Union fired her because she blew the whistle by informing the International Union of alleged financial misconduct committed by her immediate supervisors. Under section 74(1)(a) of The Saskatchewan Labour Standards Act, no employer can discharge an employee because the employee has reported to a “lawful authority” any activity that is or is likely to result in an offence. The issue was whether “lawful authority” should be limited to a person or institution authorized by law to deal with the activity as an offence and did not include employers. The Supreme Court of Canada held that it was not. The Court said that to rule otherwise “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.” It said such an “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.” The Court added that “there may well be circumstances where an employee is fully justified in not seeking an internal remedy but in going directly to the police, as where (for example) it is feared that the employer may destroy evidence. Whether or not an employee is justified in bypassing internal remedies will depend on the circumstances. My point is simply that a suitable 'lawful authority' may be found inside as well as outside the employer organization, and if an employee chooses to go the inside route and suffers retaliation, the protection of s. 74 is still available.”