A government watchdog office which has no permanent leadership and whose future has been uncertain for more than a year will be given responsibility for monitoring whistleblower cases, Cayman Islands Deputy Governor Franz Manderson has confirmed.
Mr. Manderson announced prior to the passage of the Whistleblowers’ Bill in the Legislative Assembly on Wednesday that Governor Helen Kilpatrick had given responsibility for receiving and monitoring “whistleblower” cases – reports of wrongdoing by employees against their employers – to the five-person Office of the Complaints Commissioner.
The complaints commissioner’s permanent position has not been filled since former Commissioner Nicola Williams departed in January and the acting commissioner’s post is currently being filled by a department staffer. The agency is proposed to be merged with the Information Commissioner’s Office under a “super-ombudsman” at some point in the future.
Ms. Williams, just before leaving Cayman, denounced proposals for the office merger, stating it would weaken the complaints commissioner’s post. “It will serve to weaken and diminish [the complaints commissioner’s office],” Ms. Williams said in January. “Splicing together disparate bodies with completely different functions whose only common thread is oversight is not, in my opinion, good governance.”
It was former Commissioner Williams’s report in 2014 which revealed a “culture of fear” within the Cayman Islands civil service that pushed government into drafting and bringing forward the Whistleblowers’ Bill, consolidating a number of earlier attempts to provide whistleblower protection under various laws.
The Whistleblowers’ Bill, which received passage in a key second reading, or vote, on Wednesday, is expected to gain final, formal approval in the assembly within a few days and then be passed on to Governor Kilpatrick for her assent.
Mr. Manderson explained why the complaints commissioner was chosen to monitor whistleblowers’ complaints: “It is not intended to create an additional agency to deal with disclosures of wrongdoing. [The complaints commissioner’s] office would receive the complaint, investigate if necessary, pass it on to the relevant authority to investigate and monitor the investigation.”
Anyone working in the Cayman Islands, whether in government or the private sector, can make a report or disclosure of suspected wrongdoing to the complaints commissioner or to a practicing attorney. The legislation requires all such complaints be kept in strictest confidence.
The Complaints Commissioner’s Office, according to the Whistleblowers’ Bill, will essentially be given the powers of a court in investigating reports of wrongdoing and monitoring compliance with the law.
If evidence of wrongdoing is found, the complaints commissioner can either refer the matter to the person responsible for internal discipline (in administrative cases), refer to the commissioner of police (if criminal wrongdoing has occurred) or to the governor if the wrongdoing was committed by a high-ranking government official.
The bill seeks to prevent public and private sector employees from making frivolous complaints or reports that are designed to embarrass their employers. Reports of wrongdoing will not qualify for protection against retaliation unless they are made “in the public interest,” according to the legislation. In addition, if it would normally be an offense to disclose information or if the information disclosed is considered legally privileged, the person disclosing it would not be protected.
Whistleblowers who disclose information deemed to be in the public interest get specific protections in the bill against what is termed “detrimental action” – retaliation – by their employers. Detrimental action can include actions causing loss, injury, intimidation, harassment, discrimination, disadvantage or any adverse treatment.
The bill makes it a criminal offense to take detrimental action against an employee who discloses wrongdoing. Prison terms of between two and five years upon conviction are contemplated in the proposal.
Damages can be paid to an employee who has been victimized, and employers can be held vicariously liable for retaliatory actions taken by their agents or other employees against a whistleblower.
As an alternative, employees may report suspected wrongdoing to the government director of labor and pensions, who would refer the matter to the Labour Appeals Tribunal for review.
“All employers and employees in the Cayman Islands [will] be subject to this new law,” Mr. Manderson said. “To be effective, the law will need to be properly understood by all persons and enforced.”
“I want to encourage all public servants to report misconduct and wrongdoing without fear of any type of retribution.”