Q & A: When in doubt, follow the code

October 10, 2017
Gordon Thomas, ATA Executive Secretary

Question: What is the impact of the Public Interest Disclosure (Whistleblower Protection) Amendment Act for me as a teacher and does it “trump” my obligations under sections 13 and 14 of the Code of Professional Conduct? Does this legislation change the obligations of my school board to me?

Answer: PIDA, as the act is known, is intended to encourage the reporting of wrongdoings within the public sector by better protecting the identity of whistleblowers and better protecting them from punishment or retaliation by their employer if they report a wrongdoing (the act uses the term “disclosure”).

For example, PIDA amends the Freedom of Information and Protection of Privacy Act (FOIP) to provide that a right of access under the act does not extend to information that would reveal the identity of someone who has requested advice on making a disclosure, made a disclosure or submitted a complaint of reprisal, or whose complaint has been referred to the Labour Relations Board under PIDA.

Our advice to teachers on PIDA matters is to follow the Code of Professional Conduct.

Sections 13 and 14 of the ATA’s Code of Professional Conduct require that teachers, when criticizing another teacher’s competence, reputation or performance, must first inform the teacher who is the subject of the criticism. With respect to PIDA, it’s important to note that its confidentiality provisions are made “subject to” other regulations. There is a reasonable argument that the Code of Professional Conduct is a “regulation” for the purposes of PIDA and that the disclosure obligations in the code therefore “trump” the confidentiality provisions in PIDA. We advise our members to follow the requirements of the Code of Professional Conduct in these circumstances.

The PIDA requirement to protect individuals’ identities still allows a teacher to abide by the obligations set out in the code, as PIDA does not require that the person making the disclosure keep their identity secret. As long as the teacher is willing to disclose his or her identity to the alleged wrongdoer, then the teacher is able to comply with both the code and PIDA.

School boards must follow procedural fairness in the investigation and adjudication of the disclosure and provide the alleged wrongdoer with notice of the allegations and sufficient details to allow the alleged wrongdoer to respond.

A school board policy or a school board’s attempts to withhold information that a teacher is entitled to in accordance with procedural fairness and natural justice would be in contravention of not only procedural fairness but the direction of PIDA.

Some teachers have mentioned that employers intend to use “hushmail accounts” to which a teacher can report a wrongdoing anonymously. There is no indication that a person’s identity/source email account is kept secret in such a process; the service appears to be aimed more at preventing the information contained in the email from being accessed or leaked.

In sum, our advice to teachers on PIDA matters is to follow the Code of Professional Conduct. ❚

Questions for consideration in this column are welcome. Please address them to Gordon Thomas at Barnett House (gordon.thomas@ata.ab.ca).