CUPE, the City, and whistles

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      In court documents, Jose Mario Ferreira claims he saw some stunning examples of corruption while working in the City of Richmond's roads department between 1998 and 2002. According to a B.C. Court of Appeal ruling earlier this year, Ferreira alleged that "he observed irregular practices including double-billing, improper use of sick leave and overtime, the use of City credit cards by employees for personal expenses, and the conversion of City property". His allegations have not been upheld in court.

      "He claims that when he voiced his concerns about these practices, he was harassed by fellow union employees and supervisors," wrote B.C. Court of Appeal justice Catherine Ryan in a ruling released last February. "Mr. Ferreira describes, among other affronts, racist comments such as 'die nigger', rude comments about his alleged sexual orientation, and threats such as, 'I'm going to kill you'."

      This summer, the City of Richmond introduced a whistle-blower clause in its collective agreement with its inside and outside workers. The City of Vancouver has taken a different approach, proposing a whistle-blower "policy", which would apply to all unionized and exempt staff. A statement on the City's Web site (www.vancouver.ca/) reads: "It would be inappropriate for the City's bargaining team to embed a city wide policy issue in the contract language of one particular bargaining unit prior to Council having the opportunity to review the organization wide policy considerations."

      CUPE BC president Barry O'Neill told the Georgia Straight that there is a "huge difference" between having this protection in a collective agreement and having it written by some of the same people whose actions could be exposed by whistle blowers. As the Straight went to press, Vancouver city and library workers were still on strike.

      "I'm not a huge fan of policies when it comes to protecting workers because they don't often do that," O'Neill claimed.

      Former federal whistle blower Joanna Gualtieri told the Straight in a phone interview from Ottawa that whistle blowers need to be protected by statutes because policies can be ignored, and because unions sometimes won't pursue a whistle-blowing issue if they're trying to negotiate with governments on issues that could affect hundreds of thousands of employees. "They're not in a position to piss off the government," she said.

      The B.C. Freedom of Information and Protection of Privacy Act includes a clause protecting provincial-government whistle blowers who bring their concerns "in good faith" to the attention of the information and privacy commissioner.

      In Ferreira's case, the defendants–the City of Richmond, Chris Boyce, Ken Fawns, Dennis Minns, Murray Sellers, and Art Trinidad–responded that there was no "reasonable claim" to the allegations. The defendants also claimed that Ferreira's allegations were "an abuse of process, unnecessary, scandalous, frivolous or vexatious".

      Justice Ryan wrote that Ferreira had alleged in his statement of claim that he was "harassed to the point of personal injury and that the City did nothing about it". The City noted that Ferreira also filed a complaint "based on the same facts, with the British Columbia Human Rights Tribunal".

      Ryan's decision, which was supported by fellow B.C. Court of Appeal justices Kenneth Smith and Mary Saunders, concluded that all of Ferreira's allegations were "intrinsically linked to his employment relationship". Ryan ruled that because a collective agreement existed, Ferreira had no access to the courts to pursue any claim that he had suffered workplace retaliation for being a whistle blower.

      In separate reasons for judgment, Saunders wrote: "It is not sufficient to say simply that a case concerns 'whistle blowing' to know the proper forum because that moniker may give rise to a plethora of issues, including freedom of speech, defamation, discipline, dismissal, harassment, and unsafe working environment. Thus while the context of this case may fit within the term 'whistle blowing', it is the essence of the case that must be examined to determine whether, at its heart, it is a matter of employment governed by the collective agreement."

      Vancouver mayor Sam Sullivan did not respond by deadline to the Straight's request for an interview about his view of the significance of last February's Ferreira ruling on Vancouver. City spokesperson Jerry Dobrovolny claimed that "There is a significant difference between Richmond's situation and Vancouver's situation.

      "Whether it's a council policy or it's in the collective agreement, it's still grievable or arbitratable," Dobrovolny said in a phone message left with the Straight shortly before deadline.

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