Let’s whistle while we work

DINESH RAMBALLY

I COMMEND Prof Rose-Marie Belle Antoine for a most insightful article entitled “Introducing whistle-blowing – a timely public good.”

Indeed, whistle-blower legislation is tantamount to a signpost showing the way to healthy democracies. But naturally any such legislation bears constitutional importance and cannot be haphazardly drafted. In short, it must be fit for purpose, fit for suppressing the culture of corruption so rife in Trinidad and Tobago.

The professor makes a key point when she uses the Erin Brockovich example – the dice have traditionally been loaded against the whistle-blower. It follows therefore that any whistle-blower protection law is, in effect, a law that is supposed to engender a “radical reorientation” aimed at reshaping the culture, and the very way we operate as a people. To this extent, the protection offered by the Whistleblower Protection Bill (laid in Parliament last Friday) is jokey at best.

This offer of protection is central to a piece of legislation like this. But the purported protection is simply a codification of already existing rights and protection of the law. There is no real incentive. The whistleblower, as principled as he may be, knows full well that he is on his own if and when he decides to go to court for any retaliatory and detrimental action taken against him by his employer. Yes, he would have the benefit of the provisions of this legislation to lean on (if it is passed), but not much more.

The professor is correct in saying that, “Using special tribunals instead of courts as in Canada would certainly give greater access to justice. Recourse to the courts is difficult and costly.” As a legal practitioner, I fully agree. The notion of “protection” is misguided and therefore fails to be the tool to engender the “radical reorientation” needed.

Prof Antoine also makes the point that IRA law is ill-suited to whistle-blowing legislation as the former is “pitched to unionised employees and will leave out a large percentage of workers.” Indeed, this is so. In the Whistleblower Protection Bill the definition of the word “employee” was rather large, loose and disconcerting. In it, the word “employee” equates, inter alia, to someone who works without entitlement to receive remuneration or reward.

Would it not have been simpler to include another class which includes assistants, volunteers, trainees, interns and agents? Further, if someone is a volunteer and blows the whistle, then the detrimental action he may rely on to bring an action is now severely limited, as he may also not be ordinarily entitled to a transfer or promotion, and therefore is automatically handicapped in what case he might be able to bring before the High Court.

Keeping that definition of employee as wide as it is throws into confusion other classifications such as worker, employer and contractor. These various words contain within them a host of different legal rights and they do not automatically equate with each other.

The professor made an excellent point when she referred to the balancing of rights. “Such laws require balance – a curtailment of some individual rights to protect other rights in the public interest.” But the bill did not prioritise the public interest as a factor to be considered.

Indeed, the Whistleblower Protection Bill must strike the right balance between fact and suspicion, between prejudice and principle, and between revenge and responsibility. There is an uneasy dichotomy that runs through the bill – employer/employee, good guy/bad guy, court ready/court shy. There is an unmistakable power play here that forces the whistle-blower to ask, is it worth it? It is here that motivation, reward and genuine protection can play a key role in tipping the balance to encourage whistle-blowing. Sadly, the bill has failed to do so.

Finally, may I add that there is one unnecessary dichotomy that proved to be counterproductive. Disclosures cannot be made for purposes of personal gain. However, there are times when personal gain may be a subset of a larger public interest.

Consider, for example, the worker who is discriminated against on the basis of race. He/she notices that racism abounds in the workplace and influences the selection process. If he/she makes a disclosure, then it can be deemed to be one made for personal gain although the contrary can be argued.

Prof Antoine has contributed to a valuable national dialogue on this important issue, which will hopefully assist in the better appreciation of the problems associated with the letter and the spirit of whistle-blowing law.

Dinesh Rambally is the MP for Chaguanas West