Months after the Cayman Islands “whistleblower” law came into effect, legislators are proposing a “clarifying amendment” stipulating that protections should apply not only to public employees reporting improper conduct in government, but extend to private enterprise, as well. To us, this “clarification” serves as a “magnification” of the problems in the legislation.
Applying a government whistleblower law to the private business of the private sector is a singularly bad idea.
It would apparently shield every employee of every description working in the private sector to invite government into the workplace to investigate any one of a litany of activities, so long as the report is made “in the public interest” (an oft-repeated but meaningless phrase).
One must ask: Has this ever-intruding government completely abandoned the principle of privacy and propriety that individuals and private companies are endowed with? Is this government not just deaf but ignorant of the anti-business message that such legislation sends to its own corporate community?
Whistleblowers have assumed a superhero-type persona in recent years. They are held up as paragons of courage and morality who dare to “leak” confidential, classified or proprietary information in pursuit of some greater good. Oftentimes, they do not deserve such adulation and genuflection.
At the Compass, we are regular recipients of “tips” – including accusations of criminality or wrongdoing that are no more than thinly veiled axe-grinding, gossip and gripes. We are quite familiar with the collective genre of leakers, whisperers and whistleblowers. Some do have legitimate issues, but many do not. Certainly, no one in the private sector should want government bureaucrats deciding which is which.
We make the further point that if employees in the private sector have reason to believe that their employers are behaving illegally, they have an obvious channel to bring the malefactors to justice: the police and, ultimately, the courts.
Similarly, if an employer is not providing its share of pension or health benefit payments, the health and pensions boards are the proper channels for redress. If an employer is violating the minimum wage statute, the Labour Board is the appropriate arbiter. Even further, the Ombudsman’s office is a catchall for all manner of complaints. One can only imagine what their daily mail looks like. And let’s not leave out the Anti-Corruption Commission. How many government watchdogs does this tiny territory need?
According to the Ombudsman’s office, “improper conduct” could be a criminal offense, a failure to carry out a legal obligation, conduct that has or is likely to result in: a miscarriage of justice, a detrimental action, a violation of human rights, threat to health and safety, or threat or damage to the environment. It could be conduct that shows gross mismanagement, impropriety or misconduct involving public funds. It includes the willful concealment of any of the above.
This broad definition may be fine for the government sector – after all, they are playing with funds from the public purse.
But there is no corresponding justification to apply the same protections to the private sector, which explicitly should not be judged by a “public interest” standard.
More importantly, private businesses by definition do not operate with public funds. As long as they conduct themselves within the confines and boundaries of the law, their primary purpose, and their fiduciary duty to their shareholders, is to make a profit.