Linda Merk, Corruption Fighter: Supreme Court Bound
The recent acquittal of Ironworkers Union Local 771 by the Saskatchewan Court of Appeal finds Linda Merk, former Local 771 office manager and bookkeeper, determined to have her case heard by the Supreme Court of Canada.
In the summer of 2001, Merk discovered that the Local's president and its business manager were double dipping on their travel expenses. She, along with four other union members, did what union members are told (by their leaders) to do if they discover corruption within their union: Raise the matter "in house". Merk and her allies did just that: They wrote to the International President with their allegations. An internal investigation ensued. When it was over, the Local was compelled by the International Union to a by-law prohibiting double dipping.
This looked like a lot of window dressing to Merk and she wrote to Ironworkers President stating that she planned to go to the police if more meaningful action wasn't taken. When she didn't hear back, Merk made good on her threat and called the cops. She was fired shortly thereafter. Merk filed a complaint under Section 74 of Saskatchewan's Labour Standards Act, a provincial statute that is supposed to provide workers who report possible criminal wrongdoing on the part of their employers with protection from reprisals.
74(1) No employer shall discharge or threaten to discharge or in any manner discriminate against an employee because the employee has reported or proposed to report to a lawful authority any activity that is or is likely to result in an offence pursuant to an Act or an Act of the Parliament of Canada.
The Ironworkers officials beat the rap. The Provincial Court judge who presided over Merk's complaint found them not guilty. The reason? According to the Local honchos, the decision to fire Merk was made in September 2001, after she complained to the International but before she went to the police. According to the judge, Merk's firing was based on her complaints about internal corruption, but she was not entitled to whistleblower protection because in September 2001, Merk had not yet contacted the police. She had only contacted the Ironworkers Union President and he, as far as the judge was concerned, was not a "lawful authority" as contemplated by the legislation.
Undaunted, Merk appealed the judge's decision. In January 2003, the Saskatchewan Court of Queen's Bench, overturned the lower court's decision, finding that the trial judge erred when he bought the Ironworkers' story that they'd decided to turf her long before she went to the police. A conviction was substituted for the earlier acquittal.
The Ironworkers Union wasn't going to hold still for that, however. The union appealed and, on October 21, 2003, the Saskatchewan Court of Appeal restored the original trial judge's ruling. Justice Marjorie Gerwing was satisfied that Merk's firing was planned prior to her going to the police and further held that a union official could not be a "lawful authority" because, Justice Gerwing stated, a "lawful authority" must be one that is "capable of exercising authority," in the sense of being able to compel obedience, with respect to the conduct reported as an offence.
In a dissent, Justice Stuart Cameron stated that protection under the Labour Standards Act should be extended to any employee who reports wrongdoing to "someone authoritatively empowered to act on the matter."
Merk has stated that she isn't done with the issue yet. She's heading for the Supreme Court of Canada in what is becoming on long journey to justice.
While we hesitate to criticize the decisions of our learned judges, we do have several questions we would like to ask.
Is this majority decision of the Saskatchewan Court of Appeals unduly restrictive? Many employers have policies, formal or informal, that encourage workers to raise concerns about wrongdoing through internal channels prior to going to the police or other law enforcement agencies. Merk's employer certainly had such a policy and this is common among most unions. The length and outcome of internal investigations is entirely within the employer's control. If an employer can fire a whistleblower at any point up to the time that the worker actually contacts police, what is the value of the protections provided by whistleblower protection?
Was the court correct in accepting the Ironworkers Union's explanation that it intended to fire Merk - before she went to the police? How could the court ever be satisfied that this is what the union really intended to do? Union officials facing prosecution would have plenty of incentive to say they intended to fire her earlier. But they never acted - Merk never got her termination letter - until after she threatened to go to the police. What prevents any employer who, having fired a worker for blowing the whistle on corruption, from saying "Oh well we intended to fire her a long time ago for other things but we just never got around to it until after she went to the cops with all that stuff about wrongdoing"?
Wouldn't the fact that Merk's termination letter wasn't issued until after she went to the police be a relevant factor that ought to have been considered when deciding just what it was that motivated the Ironworkers Union to fire her when it did? Shouldn't the issuing of a termination letter be the event that determines when a worker is fired?
An employer can think about firing a worker for months. Some think about firing many workers a lot of the time. The fact is that a dismissal doesn't happen until the deed is done and the worker is notified officially that their employment is terminated. An employer can draft letters of termination or discuss the possible termination of a worker with its advisers or managers until the cows come home. Managers and other decision-makers can talk about firing a worker until they're blue in the face. That doesn't make anyone terminated. An employer can think about, talk about, plot and plan a dismissal for eons but remain indecisive. At the end of the day, it's the employer who decides on the timing of the event and the event doesn't happen until it happens.
Considering that the timing of internal investigations is entirely within the employer's control and that the internal investigation will certainly shed a lot of light on both the nature of the wrongdoing the worker is alleging and how strongly he or she feels about it, shouldn't the timing and the sequence of events that led the worker to the cop shop be dispositive of the issue? Shouldn't it in the very least be considered? Doesn't the Saskatchewan Court of Appeal's decision give employers a blueprint for law-avoidance? Isn't it more likely to help employers who want to cover up corruption than workers who want to report it?
Was Merk's firing retaliatory? There doesn't seem to be much dispute about this. Merk got canned because she reported wrongdoing on the part of her employer and she wouldn't let it drop. Isn't she the very person that Saskatchewan's whistleblower legislation is supposed to protect?
And let's talk about this concept of the "lawful authority". There's no doubt that the police are a lawful authority, but what about union officials or representatives of any employer who, as part of their duties, are responsible for addressing complaints of wrongdoing?
The Appeal Court judge who weighed in on the side of the Ironworkers said that a "lawful authority" must be one that is "capable of exercising authority, in the sense of being able to compel obedience, with respect to the conduct reported as an offence".
Are union officials or corporate managers able to compel obedience? We sure think that they are. Under their constitutions, by-laws and policies they are mandated to act when wrongdoing is reported. They are empowered to act and have the authority to do so vested in them by their organizations. They can and do act and have significant powers over others within their organizations. They can initiate investigations, convene hearings, compel the attendance of witnesses and the production of documents. They can make decisions that have significant impact on the lives of others. They can discipline workers, suspend members from membership, even compel their termination from employment. If that's not "lawful authority", we're not sure what is.
Did Linda Merk in reporting her employer to the President of the Ironworkers Union, report to a "lawful authority"? Did the President hold himself out as a person who had the authority to investigate and act on her complaint? Did he have the authority to deal with the offenses that Merk alleged? We're quite sure that he did, because all leaders of unions like the Ironworkers have this level of authority. That's why Merk went to him instead of going directly to the police. She did so, seemingly, to her own detriment.
In his dissent, Justice Cameron stated that whistleblower protection should be extended to any employee who reports wrongdoing to "someone authoritatively empowered to act on the matter." We can't understand how it can be otherwise. If it can be, then the legal protections that have been put in place for working people can be and will be made meaningless by those who are authoritatively empowered to fire them.
If union officials and corporate managers who are mandated by their organizations to address complaints of corruption are not "lawful authorities" then two things must be done immediately:
- The public should be made aware of this in clear and unambiguous terms.
- Organizations that require or otherwise encourage their workers to take their complaints about wrongdoing through internal procedures before going to the police or other "lawful authorities" should be ordered to discontinue these policies. Those that encourage workers seeking to report corruption to go through internal channels first, should be charged with obstruction of justice and for impersonating "lawful authorities".
Was it the Saskatchewan legislature's intention to protect the guilty and not the innocent when it passed Section 74 of the Labour Standards Act? We don't think this is what the legislators had in mind. But the reality is that with the Court of Appeals' ruling employers who want to hide corruption and punish those who can't hold their noses and enable even more corruption, now have the perfect road map for circumventing the legislation:
- Set up an internal investigation process and make sure your workers know that they must follow it if they want to report wrongdoing.
- Make sure you have the authority to carry out the investigation any way you want and to decide the matter any way you want.
- Keep the worker sitting quietly on the sidelines thinking that you will act judiciously and do the right thing.
- Get a good sense of the nature of the wrongdoing and of the worker's thirst for justice.
- Consider a suitable whitewash or cover-up and decide, based on your authority, that this is the appropriate remedy.
- If the worker is not content with your judgment, fire him or her before they call 911.
Justice denied in six easy steps.
We certainly hope that the Canadian judiciary is not prepared to give this roadmap to injustice its seal of approval. We know that the Saskatchewan Appeal Court's decision in Merk v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, 2003 SKCA 103 runs counter to a substantial tide of judicial authority in whistle blower cases in the United States. Will Canada, where justice for workers who take a stand against corruption is still in its infancy, follow suit? Or will workers be required to submit to a shadow sub-judiciary where the rules and the rulings are meted out by the corrupt and the "lawful authorities" are out of reach to all but those who wish to risk their livelihoods and then some. We'll find out when Linda Merk gets to the Supreme Court.
We admire the determination of Linda Merk and her efforts to see justice for all workers and will keep you posted on further developments.