Whistleblower law not being used
NIA pushing for incentives and longer reporting time frame to protect employees from victimisation
MUNROE... what is being recommended is that even in those circumstances, the burden should be on the employer to demonstrate that the reason for putting the employee in an occupational detrimental position, is not as a result of the protected disclosure that was made

PROFESSOR Trevor Munroe, head of transparency watchdog group National Integrity Action (NIA), is lobbying for people to receive incentives for disclosing misconduct in the workplace under the 11-year-old whistleblower legislation, currently under-utilised.

Pointing out the severe underuse of the law to a parliamentary joint select committee which is reviewing the Protected Disclosures Act (2011), Munroe said employees have been shying away from speaking up about misconduct not only out of fear of victimisation, but due to ignorance of the law and the reporting process.

Munroe said it is time for an intense public education campaign, urging the committee to recommend that resources be provided for a comprehensive awareness building programme on the existence, purpose, and facilities for whistleblower protection.

Munroe noted that the Integrity Commission — the designated authority for reporting — had pointed out that a protected disclosures work programme was being developed, and would include the launch of a public relations campaign in 2021/22, outlining responsibility of all organisations to establish protected disclosure procedural guidelines for distribution among employees. However, he said this has yet to materialise, and urged the committee to investigate the status of this programme.

He noted that up to 10 years after the Act was passed, the commission reported that it had received only five matters relevant to the whistleblower law.

"This paucity of utilisation cannot credibly be attributed to disinterest among citizens in making complaints, since the commission itself indicated that in 2021 it received four times the number of complaints than in 2019/20," the executive director said.

He argued that despite the presence of the "informer fi dead' culture in Jamaica, surveys show an uptick in the number of Jamaicans willing to come forward to report corruption, even without any significant use of the whistleblower law.

Munroe pointed to an 80 per cent increase in reports to Crime Stop up to the end of September this year, as well as the auditor general's reporting of a "surge" in whistleblower activity, in her department's 2020/21 annual report, which showed that 34 reports were received in comparison to only six in the previous year.

Regarding incentivising whistleblowing, he noted the successful initiation of this practice in other jurisdictions such as the United States, where, between 1986 and 2020, US$45billion was recovered through protected disclosures, and whistleblowers were rewarded a total of US$7.8 billion.

Committee members Senator Kavan Gayle and Member of Parliament for St Mary Central Dr Morais Guy pointed to the possible dangers of incentives being overridden by bribes to silence would-be whistleblowers, while Senator Donna Scott Mottley said she was hesitant about incentivising disclosures, noting the cultural differences between Jamaica and other jurisdictions where this is done.

The NIA also wants greater protection for people who are victimised (occupational detriment) who report misconduct, by placing the onus on employers to prove that certain actions against/towards such employees is not payback disclosing, or indicating their intent to disclose.

"What section 17 doesn't cover is when three months down the road, or six months, or a year, the employer or the officer says now I'm going to get you. What is being recommended is that even in those circumstances, the burden should be on the employer to demonstrate that the reason for putting the employee in an occupational detrimental position, is not as a result of the protected disclosure that was made," Munroe suggested.

The Bill says where an employee suffers occupational detriment at or about the same time that they make a protected disclosure, it is presumed to be a consequence of the protected disclosure, unless the employer can otherwise justify the action.

Senators Gayle and Brown agreed with the setting out of a time frame similar to the six years specified in the sexual offences Bill, for reporting.

"I'm sensitive to this clause because there are people who have been removed from their jobs, who have not necessarily claimed [it was due to] whistleblowing," he said, arguing that, "it is not a lack of improper conduct why there has been so few or no reports, so something must be wrong with the mechanism".

At the same time, Munroe insisted that the "offensive and archaic" Official Secrets Act should be struck from the country's law books, thereby promoting more use of the Protected Disclosures Act. The recommendation was supported by Opposition members Julian Robinson and Senator Lambert Brown, who said, "This is before two world wars, and I don't think there is anybody in the parliamentary system that is as old as the last amendment in '39. Let's bury this one."

Brown also suggested adopting the anonymous tipping off approach used by Crime Stop. He said this would protect people's identity, and encourage more persons to speak out. In its current form the law requires whistleblowers to provide their full name, address and occupation when disclosing improper conduct.

BY ALPHEA SUMNER Senior staff reporter saundersa@jamaicaobserver.com

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