An employee who discloses improper conduct within the workplace will be entitled to protection from retaliation by their employer if they comply with the requirements of the Protected Disclosures Act, 2011 (“the Act”).
The Act was passed to facilitate and encourage responsible disclosure of improper conduct by an employee concerning the conduct of the employer or another employee of that employer.
Improper conduct is defined broadly to include criminal offences, failure to perform legal obligations, threats to health, safety and the environment, reprisals and victimisation of an employee, gross mismanagement of public funds, among others.
The term “employee”, as defined by the Act, is not limited to persons engaged under a contract of service (full time and fixed term employees). It applies also to independent contractors, volunteer workers, trainees, and interns. Anyone who does work for, or otherwise assists, the business of an employer qualifies as an employee under the Act. A person who formerly worked for or assisted the business of the employer also qualifies as an employee.
A social media blast about your employers’ misconduct does not qualify as protected disclosure. To qualify for protection, the disclosure must be made in compliance with the Act.
Employees who have a reasonable belief that the information being disclosed shows, or tends to show, that improper conduct has occurred, is occurring, or is likely to occur, are entitled to disclose that information by sharing it in compliance with the processes and procedures specified by the Act.
The disclosure may be made internally by divulging the information directly to the employer or a person appointed by the employer in keeping with the employer’s stated policy. In the case of a person employed to a public body or employed to a person appointed by a Minister, the disclosure may be made to the responsible Minister.
An external disclosure may be made to a list of prescribed persons provided that the employee reasonably believes that the issue falls within the area of responsibility of the prescribed person. The list of prescribed persons includes the Auditor General, Bureau of Standards, Children’s Advocate, Commissioner of Police, the Contractor General, and the National Environmental Protection Agency.
Disclosures may also be made to an Attorney-at-Law, or the Designated authority established under the Act. However, initial disclosure made directly to the Designated Authority is only permissible in specified circumstances.
An employee who makes a protected disclosure cannot be subject to legal action, whether civil or criminal, taken by the employer against him.
An employee who is dismissed because of making a protected disclosure is deemed to be unjustifiably dismissed and is able to have a dispute heard before the Industrial Disputes Tribunal. The Tribunal has the power to award compensation to the dismissed employee and/or award reinstatement of that employee.
An employee may also make complaints to the Tribunal for other retaliatory actions by the employer, described as occupational detriment. These include suspensions, demotion, harassment or intimidation, being provided with an adverse reference, transfer against their will, refused a promotion, or being denied employment, provided that these occur as a result of the employee seeking to make or making a protected disclosure.
Generally, it may be difficult to prove that an occupational detriment suffered was caused by the employee making a protected disclosure. The Act, however, provides that an occupational detriment suffered by the employee, at or about the same time he makes a protected disclosure is presumed to be a retaliation for making the disclosure. In that case, the burden is placed on the employer to prove otherwise.
The Act renders void any Non-Disclosure Agreement or Release and Discharge Agreement which tends to restrict the making of a protected disclosure or commencement of any proceedings under the Act.
The employee is also entitled to the benefit of the duty of confidentiality imposed on every person who receives, investigates, or otherwise deals with the protected disclosure. Information that is disclosed must be kept confidential unless it is given in furtherance of an investigation, legal action, or disciplinary proceedings. Failure to comply with this duty is a criminal offence under the Act.
However, with great power (or protection) comes great responsibility. Disclosure of information is not protected if the employee commits an offence in the process of making the disclosure. The disclosure must be made in good faith and in the public interest to be afforded protection. The employee is not at liberty to disclose information protected by Attorney-Client privilege. The employee commits an offence and is liable to prosecution if in purporting to make a disclosure pursuant to the Act, they make a statement which they know to be false or misleading or were reckless as to whether the statement is false or misleading.
Matthew Royal is an Associate at Myers, Fletcher & Gordon in the Litigation Department. He can be contacted via Matthew.Royal@mfg.com.jm or myersfletcher.com. This article is for informational purposes only and does not constitute legal advice.
