You have been accused of reprisal

If a public servant or former public servant believes that someone has retaliated against them because they made a disclosure or cooperated in an investigation, they can make a reprisal complaint to the Office.

After someone makes a reprisal complaint, our Office completes an analysis. The analysis determines whether the allegations could constitute reprisal as defined in the Public Servants Disclosure Protection Act (the Act).

In cases where the allegations could constitute reprisal, you receive a letter advising that the Office has launched a reprisal investigation. The head of the organization where the alleged reprisal occurred will also receive a letter to inform them of the reprisal investigation.

What is reprisal?

The Act defines reprisal as any of the following measures taken against a public servant because they made a protected disclosure or cooperated in an investigation:

• a disciplinary measure;
• the demotion of the public servant;
• the termination of employment of the public servant, including, in the case of a member of the Royal Canadian Mounted Police, a discharge or dismissal;
• any measure that adversely affects the employment or working conditions of the public servant; and
• a threat to take any of the measures referred to above

If someone has accused you of reprisal, you have a right to procedural fairness and natural justice, this means that you have a right to information about the alleged reprisal measures as well as an opportunity to provide evidence in your defense.

What happens now?

You and the head of the organization where the alleged reprisal occurred have received letters indicating an investigation is beginning.

During the investigation, our team may review documents, videos, or other evidence. They may also interview witnesses. As someone who is accused of reprisal (respondent), you will be interviewed and may be asked to respond to evidence.

Although not required, you have the right to be assisted or represented by any person of your choice, including a counsel or a union representative. This individual can attend any interviews with you if you choose.

You can apply to receive up to $3,000 in funding for legal advice about your rights and responsibilities under the Act, if you do not already have access to legal advice at no cost to you.

How are reprisal complaints resolved?

There are several ways that reprisal complaints can be resolved:

Investigation closed: Following an investigation, the Commissioner does not believe that there is evidence to support a finding of reprisal, and the investigation is closed.

Conciliation: During the investigation, the investigator can make a recommendation to the Commissioner that the parties undergo a conciliation process. The Office will hire an independent conciliator who will lead confidential discussions to determine a settlement to the satisfaction of the parties. Typically, you will not take part in these negotiations. Instead, the organization where the alleged reprisal occurred will choose a representative to negotiate on behalf of the organization.

Case referred to Tribunal and settled: Following an investigation the Commissioner believes that the evidence shows reprisal occurred. The Commissioner will refer the case to the Public Servants Disclosure Protection Tribunal. In some cases, the Tribunal manages a settlement process that allows for parties to negotiate terms for closing the matter. This negotiated settlement process is typically confidential.

Case referred to Tribunal and Tribunal makes a finding: In cases where settlement is not successful, or parties are not willing to settle, the Tribunal will make a finding. The finding will note whether reprisal occurred, and if so, may include damages for the person who made the allegation and disciplinary measures for the respondent.

The Commissioner cannot make a final determination of whether reprisal occurred, only the Tribunal can confirm reprisal.

My case was referred to the Public Servants Disclosure Protection Tribunal, what happens now?

The Tribunal process is formal and overseen by federal court judges. The Commissioner does not represent any of the parties at the Tribunal hearings.

I have received a letter that says I did not commit reprisal, what happens now?

The head of your organization and the complainant will also receive a letter with the results of the investigation, and the case will be closed.

How long does it take?

Our Office has a published service standard of one year for the completion of investigations. This standard is only a target as each case is unique, it is not possible to set out a specific timeframe for the conclusion of an investigation.

Factors that affect the length of time the process can take include:

• availability of documentation and key witnesses;
• complexity of issues; and/or
• whether specific expertise or research is needed.