By Howard Levitt and Muneeza Sheikh

Raising allegations against your employer is serious

In our practice, most whistleblower complaints at work include:

Discrimination on Human Rights-protected grounds: Canadian Human Rights legislation protects employees from harassment based on their race, colour, gender, religion, ancestry, where they were born, age, physical or mental disability, family status, source of income or sexual orientation;

Harassment: This could be sexualized in nature, or could include bullying at work (note to reader: not all one-off incidents are legally harassment) sometimes involving the abuse of positional power;

Being asked to do something unlawful or unsafe:  Employees have the legal right to refuse this work.

While there are employees who have been pushed backward for attempting to come forward, not all so-called whistleblower complaints are legitimate. Dare we say, that a smallish fraction of these complaints are only slightly veiled extortion. To be clear, these complaints involve employees (usually past employees) raising false and/or trumped-up allegations.

Sometimes it involves the threat to disclose confidential information about the company. Often, the employees raise the information under the guise of a whistleblower complaint but it is nothing more than a severance shakedown. Sometimes the request is for money that goes far beyond what their entitlements would be in the event of a termination.

Raising allegations against your employer is serious. Employees should be cautious in coming forward with information that is false or intentionally crafted to cause embarrassment. When harassment is raised by an employee (existing or departing), the employer is obligated to investigate. This includes speaking to the employee involved, and other employees to substantiate or establish what took place.

Recently we had a case involving a departing employee that raised allegations of sexual harassment against a senior member of management. Interestingly, the employee had never raised the issue during his tenure with the company (although he claimed that he had), and only mentioned it when he was fired — for cause. The allegations were sensitive and intended to embarrass. The employee was banking on a hefty payday.

Instead, the company investigated the complaint. It learned that not only was the complaint a fabrication, but that the terminated employee was the aggressor who had targeted the managerial level employee and solicited information about her that was private. When ultimately fired for multiple egregious violations of trust in the workplace, he concocted a strategy to extort the employer for money. Not only did it fail, it caused damage that was irreparable and resulted in an investigation where the employer learned far more of the departing employee’s damaging workplace behaviour thereby strengthening its defence to the dismissal case.

Employees, particularly senior ones or those working in a very small company, undoubtably will learn confidential information. Disclosing that to the public to right an egregious wrong might be permissible. Threatening to disclose that information unless you are paid is unlawful. These are the employees that are not looking to make a policy change in the workplace — they just want money. They are often employees who have been backed into a corner by their own misconduct.

Farida Azeezodeen was terminated for refusing to undergo a background check. When Ceredian refused to pay her money, she threatened to issue a long and detailed press release disclosing its confidential business methods and disparaging its reputation. In this unique case, the company went to the courts and obtained a judgement preventing her from disclosing anything. She did so anyways and was ultimately sentenced to 20 days in prison. The court saw her as defiant and was swift in issuing sanctions against her. The case makes it clear that employers have recourse when employees make empty threats.

The lessons are harsh but simple: Lying during an investigation about alleged misconduct that never happened is cause for termination. Lying about harassment after you are terminated and asking for money is extortion albeit possibly not of the criminal variety. Asking for money as a result of false allegations of sexual harassment might be sextortion. If you sue on the basis of false allegations, it could affect your ability to be employed elsewhere — ever. If you disclose confidential information about your employer in attempt to extort them for money, you can be sued or charged. Canadian employers should more readily defend themselves against baseless allegations than they generally do.