Deciding to Make a Reprisal Complaint
Before deciding whether to file a complaint, we recommend you consult the following frequently asked questions:
How am I protected from reprisal?
Your identity will be protected. Unfortunately reprisal actions can occur. If you made a protected disclosure or participated as a witness in an investigation and reprisal actions have been taken against you, contact our Office as soon as possible. We have sole jurisdiction in handling reprisal complaints.
The Act states that you must contact the Office within 60 days of knowing that you have been reprised against. This time period can be extended by the Commissioner depending on the circumstances of each case, so it is important to file a complaint even if the alleged reprisal occurred more than 60 days ago.
The Commissioner must make a decision whether to investigate within 15 days of your complaint being filed and when we have all necessary information to complete the assessment.
If, after an investigation, the Commissioner has reasonable grounds to believe that reprisals occurred, he must refer the case to the Public Servants Disclosure Protection Tribunal (theTribunal). The Tribunal is composed of judges of the Federal Court or a superior court of a province.
During the course of a reprisal investigation, if deemed appropriate, the Commissioner may suggest a voluntary conciliation between the parties. This means that you and your employer can come to a resolution together. We can help you with this process.
What will the Tribunal do?
The Tribunal will decide if reprisal actions took place, and it has the power to order the appropriate remedy for you. The Tribunal can also order disciplinary sanctions against those who reprised against you, if requested by the Commissioner.
Anyone who takes reprisal action against you is committing an offence and could face a fine of up to $10,000 and/or imprisonment for up to two years.
It is important to note that once you make a reprisal complaint, and we launch an investigation, if your case is referred to the Tribunal, the information generally becomes public and any person can attend the Tribunal's hearings.
Am I protected from reprisal if I disclosed a wrongdoing internally and not directly to the Office?
Yes, whether you disclosed a wrongdoing internally to your organization or to our Office, you are protected from reprisal.
If you believe that a reprisal has been taken against you after you have made a disclosure of wrongdoing, you should contact our Office immediately. You must file a reprisal complaint within 60 days of the day on which you knew or ought to have known that the reprisal was taken. The Commissioner may extend this period if he believes that it is appropriate to do so considering the circumstances.
Am I protected from reprisal if the wrongdoing that I disclosed is determined to be unfounded?
Yes, the protection from reprisal applies to all protected disclosures made in good faith, even if they are determined to be unfounded after a review or investigation.
Am I protected from reprisal if I am not an employee in the federal public sector?
The Act provides protection from reprisal only for public servants or other specific individuals.
It is an offence for any employer or public servant to take reprisals. Public servants cannot reprise against contractors, or recipients of grants or contributions, who disclosed to the Commissioner an alleged wrongdoing in the federal public sector. Public servants cannot terminate a contract, withhold payment or refuse to grant a future contract on that basis.
However, our Office does not have jurisdiction to deal with reprisal complaints outside the federal public sector. Non public servants who believe they have suffered reprisals may have their complaint dealt with through existing labour relations processes that apply to them or through civil or criminal recourses.
Am I protected from reprisals under the Act for having filed an individual harassment complaint?
You are only protected from reprisals for having made a protected disclosure as contemplated under the Act or for having cooperated in an investigation into a disclosure.
The Act is intended to address wrongdoing that could seriously impact the public’s confidence in the integrity of the public service. It is not intended to address matters of a personal nature, such as individual harassment complaints. While harassment is a serious matter, it is generally not considered wrongdoing under the Act.
Note: The Treasury Board Secretariat Directive on the Prevention and Resolution of Workplace Harassment and Violence and other supporting tools provide measures to address retaliatory acts as a result of having made an individual harassment complaint.
What constitutes a protected disclosure?
A protected disclosure is defined in the Act as a disclosure made by a public servant of any information that he or she believes could show that a wrongdoing as defined in the Act was committed or is about to be committed in the federal public sector, or that could show that the public servant has been asked to commit a wrongdoing.
A disclosure is protected if it is made in good faith to the public servant’s supervisor, to his/her organization’s designated Senior Officer for internal disclosure, or to this Office.
A protected disclosure also includes information of wrongdoing provided in the course of a parliamentary proceeding or a procedure established under any other Act of Parliament, as well as when a public servant is lawfully required to make a disclosure.
The concept of “protected” is an important one, as someone making such a disclosure is protected against reprisal.
Are all reprisal complaints reviewed?
Yes, our Office reviews all complaints of reprisal carefully and as quickly as possible.
The Commissioner may refuse to deal with a reprisal complaint if:
- the complaint has been dealt with, or could more appropriately be dealt with, according to another procedure (for example, a grievance process);
- the complaint is beyond the jurisdiction of the Commissioner;
- the complaint was not made in good faith.
In addition, the Commissioner cannot deal with a reprisal complaint if another person or body under another Act of Parliament or a collective agreement is dealing with it.
The Commissioner will notify the complainant in writing about any further action to be taken regarding the reprisal complaint.
In the event you make a complaint of reprisal and the Commissioner decides to investigate, you are precluded from commencing a grievance or any other procedure under an Act of Parliament, (s. 19.1 (4) of the Act).
What happens after an investigation if the matter has not been settled?
If after the investigation the reprisal complaint has not been settled through conciliation, the Commissioner must either refer the matter to the Public Servants Disclosure Protection Tribunal or dismiss the complaint.
What are the consequences for a public servant who has taken a reprisal?
A public servant who has taken a reprisal may be subject to administrative or disciplinary action including termination of employment.
Allegations of reprisal have been made against me. Do I have the right to be represented by counsel?
Yes. Any person involved in a reprisal complaint may be represented by a person of their choice, including legal counsel.
How does the Commissioner decide to extend the 60 day time period to make a complaint of reprisal?
The Office has put in place the Policy on the Time Limit for Making a Complaint of Reprisal to establish the standard against which the Commissioner's decison to reject a complaint or extend the time for filing would be reviewed.