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HomeMy WebLinkAboutP-2017-3606.Baccega.19-12-11 Decision Public Service Grievance Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission des griefs de la fonction publique Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 PSGB# P-2017-3606; P-2017-3793 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE OF ONTARIO ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Baccega Complainant - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Brendan Morgan Vice-Chair FOR THE COMPLAINANT Lai-King Hum Hum Law Firm Counsel FOR THE EMPLOYER Stewart McMahon Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING July 25, 2018 (by teleconference), Sept. 28, 2018 (hearing) March 7, 2019 (by teleconference) and March 19, 2019 (hearing) - 2 - DECISION A. Background [1] The Ministry of the Solicitor General (‘SG’ or the ‘Employer’) employed the Complainant, Ms. Maria Baccega, as a Sergeant until her employment with the Employer was terminated on October 25, 2017. Ms. Baccega filed two complaints in response to the termination, one on a Form 1A, headed “Political Activity/Disclosing and Investigating Wrongdoing, referred to below as the reprisal complaint, (Board File P-2017-3606), and another alleging dismissal without cause (Board File P-2017-3793). The employer has raised preliminary objections in respect of the reprisal complaint, which are dealt with below, while the parties agreed to hold the unjust dismissal complaint in abeyance. [2] The Complainant was at all relevant times employed at the Employer’s Toronto South Detention Centre, (‘TSDC’) located in Etobicoke, Ontario. At the time of her dismissal, the Complainant had been employed with the SG for over thirteen years. B. Mediation [3] The Board scheduled a mediation session between the parties on July 6, 2018. The parties attended at the mediation. Counsel represented the Complainant at the mediation session. The mediation session addressed both complaints but the parties were unable to resolve any of the outstanding issues raised by the complaints. [4] However, the parties did agree to proceed to arbitrate the reprisal complaint based on a series of agreed-to documents. These documents were contained in the Employer’s ‘Mediation Brief’ and later incorporated into an ‘Arbitration Book of Documents’. In addition, further particulars provided by Counsel for the Complainant supplemented the original book of documents. [5] The parties advised the Board that the Complainant had an outstanding complaint before the Ontario Human Rights Tribunal. C. The Filing of the Complaints [6] There were facts asserted and submissions made about the sequence of events in the filing of the two complaints now before the Board, which may be pertinent to the complaint alleging unjust discharge. In light of the Board’s conclusions in this decision it is not necessary to deal with those matters here. D. Facts and Submissions – Reprisal Allegations - Board File Number P-2017-3606. [7] The parties agreed that the facts underlying complaint P-2017-3606 are for the most part not in dispute. They further acknowledged that the facts involved in the - 3 - complaint number P-2017-3606 overlap with the events described in the unjust dismissal complaint, P-2017-3793. [8] The unjust dismissal application, file number P-2017-3793, challenged the Employer’s decision to terminate the employment of the Complainant. The dismissal letter dated October 23, 2017, was presented to the Complainant on October 25, 2017. At this time, it is sufficient to state that the Employer alleged both the Complainant’s participation in the assault of an inmate and the subsequent failure to follow reporting policy as the reasons for the termination of the Complainant’s employment. [9] It is important to note that the facts surrounding the Form 1-A Disclosing Wrongdoing complaint emanate almost exclusively from the pleadings and particulars filed by the Complainant. The Employer concurred that the events in question unfolded as described by the Complainant. Counsel for the Employer departed from the Complainant’s narrative on two points. Firstly, whether the factual situation described by the Complainant constituted “disclosing wrongdoing” and, secondly, the influence, if any, the events described in the Form 1-A Application had on the Employer’s decision to dismiss the Complainant. [10] The uncontradicted facts surrounding the complaint involving disclosing alleged wrongdoing are summarized below. [11] On April 13, 2017, the Complainant received a correspondence from the Employer advising that “confidential information” had “been leaked” to staff at the TSDC. The information contained in the correspondence involved the discipline records of various employees including the Complainant. [12] According to the Complainant, a number of other employees received the identical correspondence. [13] On April 6, 2017, the Complainant contacted her supervisor, Deputy Brad Gill- Tamcsu, to enquire why the correspondence had been released and what information it disclosed. [14] The Complainant requested that the Employer assign an independent third party to carry out a review of the circumstances surrounding the ‘leak’. This process, the Complainant suggested, would ensure a “transparent and impartial” process. [15] Gill-Tamcsu responded by advising the Complainant that the “Ministry had reviewed the incident and taken the appropriate actions” to address the situation. Neither the Complainant nor the Employer provided details as to what these actions entailed. - 4 - [16] The Complainant indicated that the Employer’s response was inadequate. The Complainant further sought to identify the specific measures that the Employer utilized to resolve the situation. [17] The Complainant specifically requested to review an email, dated May 12, 2017, which the Employer had created and distributed with respect to the “confidential information” correspondence. [18] On May 20, 2017, the Complainant received a “package” from the Employer. The package contained details of the personal discipline information of a number of employees at the TSDC including that of the Complainant. [19] According to Counsel for the Complainant, the information contained in the package relevant to the Complainant was “incorrect and false”. The Complainant submitted that the document contained inaccurate entries concluding with an extensive disciplinary record. [20] The Employer was alleged to have amended the Complainant’s personnel file to remove certain disciplinary notices somewhere between May 20th and September 21, 2017. The reason for the Complainant’s uncertainty surrounding the alleged amendment of her personnel file stems from the fact that the first time she reviewed her personnel file after May 30th was at the assault investigation meeting on September 21, 2017. Counsel for the Employer however, disputes this submission and submitted that the discipline record of the Complainant was unaltered. The Employer directed the Board to the discipline record of the Complainant enclosed in the complaint to the Ontario Human Rights Tribunal as an accurate reflection of what was contained in the Employer’s discipline file. [21] Counsel for the Complainant submitted that the decision to question the Employer’s distribution of various personnel files constituted an activity of “disclosure of wrongdoing”. The Complainant was acting as a “whistle blower” with respect to the Employer’s conduct and therefore should be afforded the protections offered by Part VI of the Act. [22] The Complainant submitted that the Board should conclude that her activities as a “whistleblower”, specifically complaining about the leaked documents in May of 2017 resulted in the employer’s decision to terminate her employment in October 2017. [23] Two conclusions, the Complainant submitted, flowed from such a finding. Firstly, the Complainant was not subject to the time lines for filing a complaint pursuant to Section 10(1) of the Regulation. Secondly, it would necessitate the Board to treat the Employer’s dismissal of the Complainant as a reprisal. [24] Counsel for the Complainant sought a series of remedies, including but not limited to issues surrounding the “leaked information” and $20,000 plus legal costs. - 5 - [25] In response, Counsel for the Employer submitted that the Complainant had failed to establish a prima facie case with respect to the allegation of reprisal for disclosing wrongdoing. Specifically, the Complainant had failed to establish a substantial relationship between the Complainant’s response to the leaked documents and her dismissal. [26] Counsel for the Employer submitted that the issues surrounding the complaint and behaviour of the Complainant did not meet the definitions of ‘disclosing wrongdoing’ as described in Part VI of the Act. Further, the agreed-to facts in this matter did not support the submission that the Complainant was a ‘whistleblower’ as defined in the authorities submitted to the Board for review. The Board will review the relevant excerpts from the Act and the authorities later in this Decision. [27] In the submission of the Employer, the events that lead to the termination of the Complainant’s employment were limited to the assault of the inmate and the subsequent failure to follow reporting procedures. The assault occurred on March 10, 2017, some twenty-six days before the Complainant’s concern about the “leaked document” arose. Further, there was no evidence that the Complainant formally or informally raised the issue of disclosure of wrongdoing during the seven months that the Employer investigated the assault beyond her conversation with the deputy-superintendent mentioned above. [28] The Employer submitted that the fact that that the issues surrounding the alleged leak of information arose after the assault at the TSDC and before the Employer terminated the Complainant’s employment was, at best, merely coincidental. As far as the Employer was concerned, the Complainant’s concerns about the documents had been satisfied by the response of Deputy Gill-Tamcsu. This exchange, in the submission of the Employer, does not constitute a disclosure of wrongdoing under the Act. [29] The Employer relied upon the documents generated during the investigation in support of their position. These included the uncontested reports and interview notes submitted to the Board. Counsel submitted that these documents clearly represented two positions put forward by the Employer. Firstly, that the investigation of the assault and “cover up” was ongoing for several months. Secondly, the Complainant’s attempt to link the issue of the “leaked documents” with the dismissal lacked any independent evidentiary support. [30] Counsel stated that the Employer only became aware that the Complainant was attempting to reference the “leaked document” issue with the dismissal when it received the “Statement of Complaint”. This was filed with Deputy Minister Torigian on November 3, 2017. Even at that point, the description of the relationship was at best, “remote” having been limited to two separate paragraphs in which the Complainant stated that the leak had left her “stressed and anxious” and, further, “would greatly impact my reputation amongst my - 6 - colleagues and staff.” The concerns sited by the Complainant, it was submitted, offered little, if any, evidence in support of the allegation. [31] Counsel further submitted that the Complainant’s evidence demonstrated that the SG took positive steps to correct the Complainant’s concerns about the leaked documents. W hile the Employer did not turn to an independent third party review to examine the issue the Complainant was provided with the emails that were requested. This, the Employer believed resolved the issue. [32] As a result of all of the above, the Counsel for the Employer submitted that the Complainant had failed to establish a prima facie case of “disclosing wrongdoing” and, as a result, the Board must dismiss the complaint. [33] In the alternative, Counsel submitted that if the Board did conclude that the Complainant had established a prima facie case the complaint should still be dismissed. The Complainant, Counsel for the Employer submitted, had failed to follow the proper procedures before filing a Form 1-A Application alleging disclosing wrongdoing as set out in Sections 108, 114, 115 and 139 of the Act. To summarize, the Complainant had failed to report this matter to the Ethics Advisor or the Integrity Commissioner. [34] Counsel submitted that there was no evidence in the Complainant’s particulars or submissions that mentioned any contact with the Ethics Advisor or the Integrity Commissioner. The evidence was uncontradicted that the Complainant dealt only with deputy Minister Torigian when the “Statement of Complaint” was filed on November 3, 2017. [35] The Board received submissions from Counsel with respect to the interpretation of the procedural requirements contained in the Act and the relevant authorities. Given the view the Board takes of the matter below, it is not necessary to set those submissions out in detail. [36] Finally, Counsel for the Employer submitted that if the Board determined that the complaint did not constitute an Application under the disclosing wrongdoing provisions of the Act the complaint cannot proceed as a terms and conditions complaint under Section 4 of the Regulation because it was filed outside the timelines mandated by the Regulation. [37] The parties submitted the following authorities for review: St. Amant v Ontario (Community Safety and Correctional Services), 2013 CanLII 4673 (ON PSGB); Burkholder v Ontario (Ministry of Government Services), 2013 CanLII 84293 (ON PSGB); Striko v Ontario (Ministry of Community Safety and Correctional Services), 2018 CanLII 77339 (ON PSGB), Ois v Ontario (Community Safety and Correctional Services), 2014 CanLII 76835 (ON PSGB); Doyle v Ontario (Ministry of Municipal Affairs), 2017 CanLII 52705 (ON PSGB) and Binda v Ontario (Ministry of the Environment), 2011 CanLII 93306 (ON PSGB). - 7 - E. Decision [38] It is the determination of the Board that the facts described in the Complainant’s Form1-A Application and the evidence introduced at the arbitration hearing fail to establish a prima facie allegation of reprisal for disclosing wrongdoing. As a result, the Board concludes that the reprisal complaint should be dismissed. [39] The parties agreed that the hearing would proceed without viva-voce evidence. Even with the Board assuming that all the facts alleged by the Complainant to be true, the Complainant has failed to provide any evidence that could lead the Board to conclude that the she was the victim of a reprisal because of her activities surrounding the leaked documents. The reprisal complained of was the most extreme that anyone could consider, that being the termination of the Complainant’s employment with SG. [40] Section 108 of Part VI of the Act defines “wrongdoing”. There are four categories of “wrongdoing” defined in the Section. [41] Section 114 of Part VI of the Act speaks to the ability of a public servant to disclose while Section 115 establishes procedures to allow for disclosures of wrongdoing. [42] Section 139 of Part VI of the Act provides a complainant with protection from reprisals. [43] Finally, the Section 7.2 of the “Disclosure of Wrongdoing Directive” sets out the procedure by which disclosure is to be carried out. [44] A copy of the sections of the Act referred to in paragraphs 41, 42 and 43 and the Disclosure of Wrongdoing Directive” described in paragraph 44 are found at Appendix ‘A’ of this Decision. [45] The Board has, on several occasions commented on the public policy rationale behind Part VI of the Act. As then-Vice-Chair O’Neil stated at paragraph 33 in Ois v Ontario (Ministry of Community Safety and Correctional Services), cited above: “Part VI of the Act is often referred to as the “whistle blowing” provisions. They are intended to protect public servants who disclose serious wrongdoing to their Ethics Executive or Integrity Commissioner from reprisals for doing so.” [46] In the same paragraph, Vice-Chair O’Neil went on to articulate what could be defined as the “threshold” that a Complainant must establish in order to be considered a “whistleblower”. Only when this threshold had been met could a complainant avail themselves of the protections of the Act: “In order to amount to a viable reprisal complaint under Part VI, the complainant must allege sufficient facts and circumstances that could lead to a finding that a - 8 - negative job consequence was a punishment or reprisal for disclosing wrongdoing of the kind defined there, and in accordance with its disclosure provisions,” [47] The test articulated in Ois, which has been subsequently applied in Board decisions such as Doyle v Ontario (Ministry of Municipal Affairs) guides the Decision of the Board in this matter. Applied against the facts surrounding this complaint the Complainant’s interaction with the supervisor in April of 2017 cannot be concluded to be a report of a breach of a statute, the creation of grave danger or gross mismanagement in the work of the public service of Ontario as contemplated by the Act. [48] To apply the test articulated in Ois to the facts at hand, the Complainant has not alleged “sufficient facts and circumstances that establish a prima facie finding that a negative job consequence was a punishment or reprisal for disclosing wrongdoing”. There is no asserted fact or proposed evidence before the Board that the Complainant’s role in the “leaked document” situation was met with a reprisal. [49] The only matter before the Board that potentially could support a conclusion that the Complainant’s dismissal was a reprisal rests with the fact the termination occurred after the Complainant raised a concern about the leaked documents. However, three factors stand in the way of the Board coming to such a determination. [50] Firstly, the significant passage of time between the alleged assault, the Employer’s decision to terminate the Complainant and the complainant’s complaining of the ‘leaked documents’ is, in the opinion of the Board, far too remote to support the allegation that her dismissal was a reprisal. The fact that the investigation into the assault was well underway before the issue of the leaked documents arose significantly weakens the Complainant’s submission linking the incident to the termination. The agreed to-facts demonstrate that the employer initiated an immediate investigation with respect to the Complainant’s participation in the alleged assault of the inmate within ten days of the March 10th, 2017 incident. The Complainant was, at that time, interviewed by Deputy Lacroix. The Employer conducted another interview the following day with both Deputies Lacroix and Gill-Tamcsu in attendance. Further interviews occurred over the course of the next few months resulting in the termination letter of October 23, 2017. The leaked document incident arose on April 13, 2017 and according to the evidence before the Board ceased to be in dispute by May 20, 2017. While there was some obvious overlap of time between events, the fact that six months elapsed, during which the assault investigation was on going, leaves the Board with significant questions about the question of a reprisal. There is no evidence before the Board to support the allegation that the complaint about the leaked documents was “alive” during the six month period from April to October, 2017 that might suggest it played a role in the Employer’s decision to dismiss the Complainant. - 9 - [51] Further, there was no objective evidence advanced by the Complainant that would suggest the Employer’s decision was, during the period from April 13 to October 23rd, 2017, influenced by her complaint. The Complainant’s account of the meetings does not suggest that the Employer was angry or upset with her complaint about the release of the documents. The same could be said for the uncontradicted interview notes that were provided to the Board. The evidence, in its totality, does not provide one incident where the complaint was raised outside of the specific interactions described by the Complainant. [52] Finally, even if the Board was to accept the Complainant’s submissions with respect to the evidence it is still the view that the Complainant has failed to establish a prima facie case. In the opinion of the Board, the activities of the Employer in this instance do not constitute serious wrongdoing as set out in Section 108 of the Act. As mentioned in paragraph fifty, above, “wrongdoing” is defined as: a. a contravention by a public servant, a minister, or parliamentary assistant of an Act of the Assembly or the Parliament of Canada, or of a regulation made under such an Act, b. an act of omission of a public servant, a minister or parliamentary assistant that creates a grave danger to the life, health or safety of persons or to the environment, where the danger is unreasonable having regard to his or her duties, powers and functions and any other relevant circumstance, c. gross mismanagement by a public servant, a minister or parliamentary assistant in the work of the public service of Ontario, d. directing or counselling a wrongdoing within the meaning of the clauses (a) to (c) by a public servant, a minister or parliamentary assistant. 2006, c35, Sched. A, s. 108(1). [53] It is the opinion of the Board when the facts surrounding the leaked documents are contrasted against the defined examples of “wrongdoing” it must be concluded that the Complainant has failed to make out a prima facie case of wrongdoing as defined in Section 108 of the Act. [54] There is no evidence to support that an Act or regulation has been contravened or that the behaviour complained of has placed anyone in grave danger. [55] Finally, with respect to the internal leak of the personnel documents the Board concludes that while unfortunate the actions of the Employer do not reach the level of gross mismanagement. [56] As a result, the Board dismisses the complaint brought under Part VI of Act. [57] With respect to the Employer’s submissions raised in paragraphs 33 through 36 above, the Board finds it unnecessary to comment on the issue of the - 10 - Complainant’s compliance or non-compliance with the reporting procedures outlined in the “Disclosure of Wrongdoing Directive, 2007”. [58] The remaining issue is whether, in light of the Board having dismissed the complaint as failing to establish a prima facie case under Part VI of the Act the Board should accept it as a “terms and conditions” complaint falling within Section 4 of the Regulation. [59] The Board declines to rule on that issue for the following reasons. While the Employer did include this question in its final submissions, Counsel for the Complainant did not request that the Board consider this issue. Counsel did submit that a finding of ‘disclosing of wrongdoing’ would exempt the application from the time limits prescribed in the Regulation. However, there was no submission advanced that should the Board reject the application as falling under Part VI it could proceed as a ‘terms and conditions’ complaint under the Regulation. In the view of the Board it is not necessary to decide whether the reprisal complaint is timely under the regular “terms and conditions” of the Regulation because even if it were found to be timely, it was certain to fail as it did not disclose a prima facie case with respect to the substantive reprisal allegations. [60] This Decision disposed of the question of the viability of the complaint set out in file number P-2017-3606 brought under Part VI of the Act. With respect to Board File P-2017-3793, the unjust termination complaint remains outstanding. There was no consensus between the parties as to how the unjust dismissal complaint should proceed. The submissions of the Complainant at the conclusion of the hearing suggested that the allegations contained in the complaint may be integrated into the outstanding complaint now before the Ontario Human Rights Tribunal. However, Counsel for the Complainant did not indicate if that was to occur whether the complaint before the Board would be withdrawn. [61] The Board therefore directs the parties to indicate the status of the unjust dismissal complaint before the Board. Dated at Toronto, Ontario this 11th day of December, 2019. “Brendan Morgan” _______________________ Brendan Morgan, Vice-Chair - 11 - APPENDIX A Excerpts from The Public Service of Ontario Act: Ethics executive for public servants 62. (1) The ethics executive for a public servant is determined as follows: 1. The ethics executive for a public servant employed under Part III who works in a ministry, other than in a minister’s office, is the deputy minister. … Protection from Reprisals No reprisals 103. (1) No person shall take a reprisal against a public servant because he or she has, (a) engaged in political activity in accordance with this Part or the regulations; or (b) exercised his or her right under this Part to decline to engage in political activity. 2006, c. 35, Sched. A, s. 103 (1). Same (2) For the purposes of subsection (1), a reprisal is any measure taken against a public servant that adversely affects his or her employment or appointment and includes but is not limited to, (a) ending or threatening to end a public servant’s employment or appointment; (b) disciplining or suspending or threatening to discipline or suspend a public servant; (c) imposing or threatening to impose a penalty related to the employment or appointment of a public servant; (d) intimidating or coercing a public servant in relation to his or her employment or appointment. 2006, c. 35, Sched. A, s. 103 (1). Complaint about reprisal, discipline 104. (1) A public servant described in subsection (2), (3) or (4) may complain under this section that he or she, (a) has suffered a reprisal prohibited by section 103; or - 12 - (b) is disciplined for a contravention of this Part or a direction or regulation under this Part. 2006, c. 35, Sched. A, s. 104 (1). … Public servant not subject to collective agreement (3) A public servant employed under Part III who is not subject to the terms and conditions of a collective agreement may file the complaint with the Public Service Grievance Board. 2009, c. 33, Sched. 17, s. 10 (14). … PART VI DISCLOSING AND INVESTIGATING WRONGDOING Interpretation 108. (1) In this Part, “wrongdoing” means, (a) a contravention by a public servant, a minister or parliamentary assistant of an Act of the Assembly or of the Parliament of Canada, or of a regulation made under such an Act, (b) an act or omission of a public servant, a minister or parliamentary assistant that creates a grave danger to the life, health or safety of persons or to the environment, where the danger is unreasonable having regard to his or her duties, powers and functions and any other relevant circumstance, (c) gross mismanagement by a public servant, a minister or parliamentary assistant in the work of the public service of Ontario, (d) directing or counselling wrongdoing within the meaning of clauses (a) to (c) by a public servant, a minister or parliamentary assistant. 2006, c. 35, Sched. A, s. 108 (1). … Disclosure, procedures - 13 - 114. Where a public servant or former public servant has reason to believe that there has been wrongdoing, he or she may disclose the wrongdoing in accordance with the procedures established under section 115. 2006, c. 35, Sched. A, s. 114. Directives, Public Service Commission 115. (1) The Public Service Commission may by directive establish procedures to deal with disclosures of wrongdoing by, (a) a public servant who works in a ministry; and (b) a former public servant who worked in a ministry immediately before ceasing to be a public servant. 2006, c. 35, Sched. A, s. 115 (1). … (3) Without limiting the generality of subsections (1) and (2), directives issued under those subsections may, (a) establish procedures by which a public servant or former public servant may make disclosures of wrongdoing, including directions as to the persons to whom disclosures may be made; (b) establish procedures to protect the identities of persons involved in the disclosure process, including persons who make disclosures, witnesses and persons alleged to be responsible for wrongdoing; and (c) provide for exceptions to be made to procedures described in clause (b) where the interests of fairness require that a person’s identity be disclosed to one or more persons. 2006, c. 35, Sched. A, s. 115 (3). Same (4) Directives issued under this section may be general or particular in their application. 2006, c. 35, Sched. A, s. 115 (4). Interpretation … Protection from Reprisals No reprisals 139. (1) No person shall take a reprisal against a public servant because he or she has, - 14 - (a) sought advice about making a disclosure about wrongdoing in accordance with this Part; (b) made a disclosure about wrongdoing in accordance with this Part; (c) co-operated in an investigation or other process related to a disclosure of wrongdoing made in accordance with this Part; (d) acted in compliance with this Part; or (e) sought enforcement of this Part. 2006, c. 35, Sched. A, s. 139 (1). Same (2) For the purposes of subsection (1), a reprisal is any measure taken against a public servant that adversely affects his or her employment or appointment and includes but is not limited to, (a) ending or threatening to end a public servant’s employment or appointment; (b) disciplining or suspending or threatening to discipline or suspend a public servant; (c) imposing or threatening to impose a penalty related to the employment or appointment of a public servant; (d) intimidating or coercing a public servant in relation to his or her employment or appointment. 2006, c. 35, Sched. A, s. 139 (2). Complaint about reprisal 140. (1) A public servant described in subsection (2), (3) or (4) may complain under this section that he or she has suffered a reprisal prohibited by section 139. 2006, c. 35, Sched. A, s. 140 (1). … Public servant not subject to collective agreement (3) A public servant employed under Part III who is not subject to the terms and conditions of a collective agreement may file the complaint with the Public Service Grievance Board. 2009, c. 33, Sched. 17, s. 10 (15). Excerpts from the Public Service Commission, Disclosure of Wrongdoing Directive, 2007– part of employer submissions - 15 - 7.2 Making a Disclosure Employees can make a disclosure of wrongdoing to their ethics executive. Employees also have the option to disclose directly to the IC [Integrity Commissioner] (see Appendix A) if the employee: • believes that it would not be appropriate to disclose internally, or • has already disclosed internally and has concerns that the matter has not been appropriately dealt with. It is important to note that there must be enough information so that an assessment of the disclosure can determine the best course of action. If a disclosure does not have enough information, the employee making the disclosure (the discloser) may be contacted. The PSOA also sets out three types of information that cannot be divulged, either in a disclosure or in any process addressing the disclosure. These exceptions are well recognized in law: • information that is subject to solicitor-client privilege; • information that would reveal the substance of the deliberations of Cabinet (Cabinet privilege); or • anything that is prepared by or for counsel for a ministry or public body for use in giving legal advice or in regards to litigation.