After bill passed in 2015, whistleblower protection slow to arrive

Legislation passed nearly two years ago to protect private and public sector employees who report wrongdoing will not come into effect until February 2018.

Commencement orders for the Whistleblower Protection Law, 2015, were issued late last month, which will put it into effect about two-and-a-half years since it was approved by the Legislative Assembly.

The long-contemplated whistleblower protections follow several attempts by the Cayman Islands government to create safeguards against various forms of retaliation for those who report either criminal or administrative w`rongdoing in the workplace. Several Cayman laws, including the Freedom of Information Law and the yet-to-be-implemented Standards in Public Life Law, sought to create various protections for whistleblowers but were rarely, if ever, used.

The government’s whistleblower proposal was prompted in part by a 2014 report from the complaints commissioner’s office that focused on allegations of wrongdoing within the civil service.

Part of the reason for the delay in implementing the provisions of the law were because its enforcement mechanism was unclear. In November 2015, the Office of the Complaints Commissioner, a government watchdog office that has had no permanent leadership for years and whose future has been uncertain due to the creation of a new government ombudsman’s post, was given responsibility for monitoring whistleblower cases.

Deputy Governor Franz Manderson had announced before the November 2015 passage of the whistleblowers law that Governor Helen Kilpatrick had given responsibility for receiving and monitoring “whistleblower” cases 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 2015, and the acting commissioner’s post is currently being filled by a department staffer. The agency is to be merged with the Information Commissioner’s Office under the ombudsman’s office later this year.

Senior civil servant Peter Gough, an assistant to Mr. Manderson, said last week that the whistleblower plan had changed slightly with the pending creation of the new Office of the Ombudsman, which the complaints commissioner will now fall under.

“The Ombudsman Law will commence on Oct. 1; this will coincide with the new ombudsman taking up post,” Mr. Gough said. “The Whistleblower Law and data protection will come under the Office of the Ombudsman.”

Ms. Williams, just before leaving Cayman, denounced proposals for the office merger.

“It will serve to weaken and diminish [the complaints commissioner’s office],” Ms. Williams said in January 2015. “Splicing together disparate bodies with completely different functions whose only common thread is oversight is not, in my opinion, good governance.”

How it works

Anyone working in the Cayman Islands, whether in government or the private sector, can make a report or disclosure of suspected wrongdoing to the ombudsman’s office or to a practicing attorney. The legislation requires all such complaints be kept in strictest confidence.

The ombudsman’s office 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 ombudsman 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.

Government workers

The legislation also gives the government service the added option of transferring a worker who has reported suspected wrongdoing to another department in the service, if the person requests it.

In such a case, the government chief officer must believe that the worker has or will be retaliated against if they were to remain in the department where they reported wrongdoing.

The ability to transfer an employee is provided only to a public entity.

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