Whistleblower

To maintain and enhance public confidence in the City of Hamilton and its employees.

The residents and businesses of the City of Hamilton are entitled to fair, ethical and accountable local government administration. The City of Hamilton has high expectations of its employees for integrity and ethical conduct in their service to the community.

The Whistleblower By-law is intended to help uncover serious wrongdoing at the City, by bringing it to the attention of management and the Auditor General, and to ensure it is addressed appropriately, including by means of an investigation where required.

The By-law protects City of Hamilton employees who report serious wrongdoing from job-related reprisals, dismissal, suspension, demotion, discipline, harassment, denial of a benefit of employment, and any other disadvantaging. Reprisal protection is key for encouraging employees to report serious wrongdoing when they become aware of it.

The By-law prohibits any employee or a member of Council from dismissing, suspending, demoting, disciplining, harassing, denying a benefit of employment or otherwise disadvantaging an employee, or threatening any of these things, when an employee has made a disclosure of serious wrongdoing that, as determined by the Auditor General, is a qualifying disclosure.

In addition, the By-law obligates all employees or members of Council with supervisory or management responsibilities to ensure that an employee is not subject to reprisal and that employees under their direction are made aware of the By-law.

Other regions and municipalities such as Waterloo, Toronto, York, and Windsor offer similar protection from job-related reprisals under a whistleblower policy or whistleblower provisions in their employee codes of conduct.

A serious wrongdoing is one of the following acts or omissions committed by a City of Hamilton employee:

• a contravention of the Criminal Code, federal or provincial statute or regulation, or City By- law;
• an act or omission that results or is likely to result in the misappropriation or misuse of City funds or assets;
• a contravention of the City’s Code of Conduct for Employees that results or is likely to result in profit, payment or compensation to the employee(s);
• an act or omission that creates or is likely to create a substantial and specific danger or harm to the life, health or safety of any person; or
• an act or omission that creates or is likely to create a substantial and specific danger or harm to the environment; or
• a reprisal.

It means any of the following measures taken against an employee because the employee has made a qualifying disclosure:

• the dismissal, suspension, demotion, discipline, harassment of an employee;
• the denial of a benefit of employment to an employee;
• any other disadvantaging of an employee;
• or the threat to take measures to dismiss, suspend, demote, discipline, harass, deny benefit of employment, or any other disadvantaging of an employee.

As with any report of serious wrongdoing, it is up to the Auditor General to decide whether or not it is appropriate to undertake an investigation or alternative action with respect to a reprisal. An investigation may be conducted by the Auditor General, another employee or an outside individual or entity appointed by the Auditor General. To be protected from further retaliatory measures for reporting a reprisal, an employee must meet the requirements of the By-law’s section 6, including making the report in good faith. If the report of a reprisal is not made in good faith, the employee may be disciplined, up to and including dismissal.

Employees may disclose serious wrongdoing to their supervisor/manager, the head of their Department (including the head’s designate), the Auditor General or the City of Hamilton Fraud and Waste Hotline. With the Fraud and Waste Hotline, the Reporter has the ability to make reports anonymously.

There are five reporting options available:

• Online: integritycounts.ca/org/cityofhamilton
• Phone: 1-888-390-0393
• Mail: PO Box 91880, West Vancouver, BC V7V 4S4
• Email: [email protected]
• Fax: 1-844-785-0699

For more information on the Fraud and Waste Hotline go to hamilton.ca/fraud

If the disclosure is made to the supervisor/manager or the head of the Department, then supervisor/manager or the head of the Department must submit it immediately to the Auditor General.

There is an onus on the supervisor/manager to forward any received whistleblower complaints to the Auditor General.

The employee will be given written notice from the Auditor General that their disclosure has been received. It is important that the process is accessible to all employees.

When the Auditor General receives a disclosure of serious wrongdoing, the Auditor General determines:

• whether or not it is a qualifying disclosure, and;
• whether or not it is appropriate to undertake an investigation or alternative action.

Determination of a Qualifying Disclosure:
When the Auditor General makes their determination of a qualifying disclosure, they consider if the disclosure meets the following requirements:

• The employee identifies themselves and their position with the City or their work title;
• The employee has reasonable grounds to believe there has been or about to occur serious wrongdoing by one or more employees or members of Council;
• The employee makes the disclosure in good faith which means not trivially, frivolously, or for vexatious purpose; and
•  The employee makes the disclosure to their supervisor/manager, the head of their Department (including the head’s designate), the Auditor General, or by using the Fraud and Waste Hotline. The Fraud and Waste Hotline is operated independently by a third party and provides five reporting options:
   
  • Online: integritycounts.ca/org/cityofhamilton
  • Phone: 1-888-390-0393
  • Mail: PO Box 91880, West Vancouver, BC V7V 4S4
  • Email: [email protected]
  • Fax: 1-844-785-0699

Determination to Undertake Investigation or Alternative Action:

When the Auditor General makes their determination as to whether or not it is appropriate to undertake an investigation or alternative action, the Auditor General must consider if the length of time that has elapsed since the serious wrongdoing occurred is such that an investigation or alternative action would serve no useful purpose.

The Auditor General in making their determination, and subsequently, in the course of any investigation or alternative action, must also consider other possible investigations or alterative actions, such as those which have been or may be undertaken by the police, the Integrity Commissioner or supervisor/management staff, and their effect, if any, on an investigation or alternative action under the By-law.

When the Auditor General decides an investigation is necessary, they may appoint another employee to conduct it or, in consultation with the City Manager, an outside individual or entity. Upon completion of an investigation, the Auditor General decides if a report is necessary and, if it is, who should receive it.

In order to be a qualifying disclosure, the employee must provide their name, position, and work title. This information will be treated as confidential whenever possible.

However, it is within the Auditor General’s authority to disclose the information at any time when it is necessary to protect the City’s interests and to avoid or limit harm to the City, the public or the employee. In addition, all relevant access to information and protection of privacy legislation applies.

There are other requirements that apply to staff and/or members of Council:

• The By-law requires all persons, including employees or members of Council, to co-operate with any investigations or alternative actions and not to obstruct the Auditor General or his/her delegate in carrying out their responsibilities under the By-law. Failure to comply may result in discipline, up to an including dismissal for an employee or a complaint, inquiry and penalty under the Integrity Commissioner By-law for a member of Council.
• No person, including an employee or member of Council, who is advised of an investigation under the By-law, is to destroy, conceal, mutilate, falsify or otherwise alter a relevant document or thing either themselves or through another person.

An employee is protected from reprisal only if he/she satisfies the requirements with respect to a qualifying disclosure as determined by the Auditor General. Specifically, this means that the employee must: identify his/her name and position with the City; have reasonable grounds for believing there has been or is about to occur a serious wrongdoing by one or more employees or members of Council; make the disclosure in good faith; and, make the disclosure to one of his/her supervisor/manager, the head of his/her Department (including the head's designate), or the Auditor General.

An employee could disclose a serious wrongdoing to the media and also disclose it to the Auditor General and, depending on the circumstances, be protected from reprisal.

In making such a disclosure to the media, the employee would continue to be subject to applicable policies (such as the Code of Conduct for Employees with respect to confidentiality) and statutes (such as the Municipal Freedom of Information and Protection of Privacy Act and the Personal Health Information Protection Act) and any consequences resulting from breaching such policies and statutes.

Effective media relations are critical to the City of Hamilton. The City of Hamilton Communications Policy for Media Relations is to ensure professionalism and consistency in how the City works with the media.

Supervisors/managers and heads of Departments only submit a disclosure to the Auditor General and do not have any further role under the By-law, such as determining whether or not it is a qualifying disclosure. The Auditor General’s obligation to send a written notice of their receipt of a disclosure to the employee ensures that this submission occurs.

The Whistleblower By-law recognizes that such disclosures should be referred to the Integrity Commissioner for possible investigation under the Integrity Commissioner By-law, without precluding investigation or alternative action under the By-law, for example to protect the City's funds or assets.

The By-law does not provide for disclosures of serious wrongdoing made by Council members, nor does it give Council members protection from reprisal.

The collective role of Council is set out in s. 224 of the Municipal Act, 2001 and includes representing the public, considering the well-being and interests of the municipality, ensuring the accountability and transparency of the operations of the municipality and maintaining the financial integrity of the municipality. Council Code of Conduct relevant By-law is the Integrity Commissioner By-law.

Reprimand or suspension of pay can only be imposed by the Integrity Commissioner acting in accordance with the Integrity Commissioner By-law and dismissal, only for the violation of certain statutes or by the voters at election time.

Yes. Provincial law provides whistle blowing protection for several types of disclosure including reports concerning occupational health and safety and environmental wrongdoing. The Criminal Code makes it an offence to carry out a reprisal because an employee reports breaches of federal or provincial law to enforcement authorities, or for threatening a reprisal to prevent employees from making such a report. The City’s Whistleblower By-law recognizes these protections.

An employee who is found to have committed a serious wrongdoing may be subject to disciplinary action, up to and including termination of employment.

As with any report of serious wrongdoing, it is up to the Auditor General to decide whether or not it is appropriate to undertake an investigation or alternative action with respect to a reprisal. An investigation may be conducted by the Auditor General, another employee or an outside individual or entity appointed by the Auditor General. To be protected from further retaliatory measures for reporting a reprisal, an employee must meet the requirements of the By-law’s section 6, including making the report in good faith. If the report of a reprisal is not made in good faith, the employee may be disciplined, up to and including dismissal.

There is no time limit outlined in the By-law for reporting a serious wrongdoing; however, if a substantial length of time has gone by since the wrongdoing occurred, the Auditor General may determine that an investigation or alternative action would serve no useful purpose.