Air Safety Round Table: David Hutton
David Hutton, executive director of FAIR, is an advocate for better legislation to protect whistleblowers who protect the public interest. He is a published author, and a former senior executive and management consultant, and an expert in management systems.
Remarks
(Video 15:05)
Good afternoon everyone. I want to thank particularly the organizers of this excellent forum, which is clearly very badly needed.
I am representing an organization called FAIR, which stands for the Federal Accountability Initiative for Reform. The name doesn't make it obvious, but our role in life is to help protect whistleblowers. You've heard already from Canadians for Accountability – our focus is more on the law, and the implementation of laws to protect whistleblowers. There are very limited resources in this area, and none of us have the ability to help all of the people out there who need help, so that's our focus.
My background: I had a successful career in industry, I'm an expert in management systems – quality management systems in particular – and in the last few years I have essentially retired in order to devote my energy to this issue of whistleblower protection. I'll not go into the reasons of how that came about.
This is a key part of the puzzle that we are looking at, how we make our airways safe, and as part of my preparation for this meeting I got out the Dryden Report, which is four volumes like this for those of you who haven't seen it. In going through that I really had a sense of déja vu. We are looking at very much the same situation and the same issues again, and when I turn on the TV and see the Listeriosis inquiry going on, again I see the same problems, the same attitudes, the same failure to oversee the industry.
The role of whistleblowers
I'd like to focus my remarks on the role that whistleblowers play and the challenge of protecting them adequately. I don't think that I need to convince anyone in this room of the need for people to be able to speak up, either as part of the SMS system, or when that fails, to go beyond that. But I would like to give you some more information that will help you perhaps to articulate the scope of the problem to others.
It is very telling that if we look at other countries that we typically compare ourselves against – the USA and [the UK] – that both of those countries have had whistleblower protection legislation for more than 20 years. We theoretically made a start recently, but as I'll explain to you, it's a false start: we really haven't gotten anywhere. It is also interesting that in both of those countries, the triggering event that caused a demand for this type of legislation, was to do with transportation and aerospace. One was the Columbia shuttle disaster, in which the O-rings failed, leading to the loss of the entire crew including a civilian teacher. The other was the sinking of a roll-on-roll-off car ferry off Zeebrugge, in which over 190 lives were lost because the ferry sailed with the bow doors open and sank within minutes.
The investigations of these disasters in both cases found that employees within the industry were fully aware of the problems that led to the tragedy, and had tried every means at their disposal to have the problems addressed, and that they had been ignored, and hence preventable disasters were allowed to occur.
There is also compelling statistical evidence that whistleblowing is one of the most powerful ways of keeping an industry honest. I'll point to international studies of white collar crime, which show that typically 40% or more of frauds are uncovered through employee tip-offs, by various means – hotlines and so on. That is far ahead of the detection rate from audit and other management controls combined: the next most important method of discovery is by accident.
To me these are compelling arguments that we need to tap into this resource, and it only makes common sense that in this industry where there are so many thousands of people employed – within the carriers, within the regulator, within Nav Can and so on. These people know what is going on. They know when shortcuts are being taken, they know when the rules are being broken. If only we could allow them to speak up safely, then we would know what was going on.
I'm going to make the argument that we must have a strategy of stripping away the excessive and unnecessary secrecy that is being layered over this entire system. There are many parts to that but the part I'd like to focus on is the whistleblowers.
Now there is a huge challenge here. Some of you might think that this is not going to be too difficult: we're just going to add a few lines in the regulations and it's done. I'm sorry – it doesn't work that way, and I'd like to give you a sense of that by talking about the typical experience of a whistleblower. We have some of them here, and I think that all of them will attest to the extreme stress and damage to their lives that has been done to them, but these people here are the survivors: these are the ones that are standing and have survived the experience and are able to talk about it.
The typical experience of whistleblowers
The typical experience of someone who comes across information that their bosses don't want to hear and tries to get it dealt with, is that they are subject to vicious and calculated harassment and reprisals in the workplace: attempts to isolate them, to make their colleagues frightened to speak to them, to humiliate them; and this goes on until they cannot take it any more. At some point their doctor will say to them "You cannot go to work any more because it is going to kill you". And at that point the organization has succeeded in getting rid of them and getting them out of the workplace and silencing them.
But it goes further than that, because the employer will make every attempt to prevent them from being employable, so that they not just lose their jobs but lose their careers. The consequences of this, for them and their families, are enormous: They typically lose their livelihood. That leads to loss of the home, and it is very hard for family to understand what is going on. When all the authorities are saying “this person is wrong, this person is raising false alarms” it is very hard for family to understand that this is a person doing the right thing and standing up for the truth. And it’s hard for family to understand why this issue is apparently being put ahead of their interests; so people lose their families as well. They also end up with the type of post traumatic stress symptoms that you'd expect to find in people who have been in a war: nightmares, flashbacks, chronic depression, suicidal thoughts, and regrettably some do actually commit suicide.
I'm not telling you all of this to raise sympathy. I'm telling you because you need to understand the forces that are ranged against the whistleblower; the forces that are also standing there when you try to introduce legislation. I don't want to paint all of these people [employers] as being bad people. What I've learned is that in the situation where an employee has information that might, for example "undermine public confidence in the industry", the senior people manage to rationalize that they are doing the right thing and that the whistleblower is entirely wrong. They rationalize their own actions, they demonize the whistleblower, and this means that in their minds, anything that they could do to this person is justified, because the whistleblower is entirely wrong and doing the wrong thing.
You might expect this sort of behaviour from a firm whose profits are threatened. You might not expect (as Canadians we tend to trust our government) you might not expect this type of treatment from the government – and you'd be absolutely wrong.
Two whistleblower cases
I'll mention a couple of cases which have relevance here. One is the case of the lady who founded the organization that I am now running; who blew the whistle on waste and extravagance in Foreign Affairs, and was harassed out of her job. She sued her bosses for harassment, and that case is now in its 11th year. The government lawyers have asked her more than 10,500 questions. Government lawyers, paid by us, have spent their time dreaming up these questions, apparently in order to delay the case. They have also subjected her to over 30 days of cross-examination in the discovery process. The norm these days is one day, unless in exceptional circumstances.
It is very hard to look at this case and come to any other conclusion than that the government lawyers, with the encouragement of their client, are doing everything possible in their power to break this person, financially, emotionally and in every other way.
I'll give you one other case which is particularly relevant. You may recall the three Health Canada employees who testified to the Senate about bovine growth hormone and the activities of the drug companies. They lost their jobs a few years later, the Senate was unable to protect them, and they are currently in hearings before the Public Service Labour Relations Board. The final arguments are being made now after four years of process, and we will find out what is to happen to them. The best that these people can hope for is to be given their jobs back in a department that clearly views them as the worst kind of traitors and pariahs. That's the best they can hope for.
Again, I'm telling you this, not to raise sympathy but to understand the challenge.
The state of whistleblower legislation in Canada
In Canada our parliamentarians have tried to deal with this issue, and we have legislation that was introduced in two stages: first under the Liberals and then that legislation was amended by the Federal Accountability Act. So we have today at a federal level the Public Servants Disclosure Protection Act, and unfortunately it's not working. It was criticized as it was going through Parliament, the Senate correctly identified many of the shortcomings and attempted to correct those, but these amendments were all rejected.
The bottom line is that we have today a Public Sector Integrity Commissioner, who is an agent of Parliament, who has extensive powers of investigation under the Inquiries Act, who has a staff of 21 and an annual budget of about $6.5 million. But in her first year of operation, has found not one single example of wrongdoing in the entire federal public service, and not one single example of reprisal against someone for trying to raise concerns.
I'll give you some statistics to reinforce just how incredible this is. She is responsible for protecting about 400,000 employees, of whom more than one in five report that they have been subject to harassment (when surveys are conducted). She oversees a system which burns up about half a billion dollars every day. But you'll all be very relieved to know that there is absolutely nothing wrong with this system.
Now I don't fault the parliamentarians who supported that legislation and took it through Parliament, but I think that there's a naivety here, to think that this would be easy. If we look at the UK and USA, which are more than 20 years ahead of us, it has been an ongoing battle: of legislation, followed by the legislation being undercut by the administration, by judges, by various means, then stronger legislation, and then it being attacked again.
That's been an ongoing battle in the USA for the past 20 years. They have dozens and dozens of pieces of very well written legislation, they have numerous NGOs monitoring what is going on and taking action to protect whistleblowers. We've not even started. And in the private sector, where a lot of the employees are that we need to protect, there's nothing. There's not even the pretence [of a law] there's no initiative under way to protect these people: they are completely naked.
Action required
I believe that what has to happen, as part of the strategy to make our airways safe, is to strip away the unnecessary and unjustifiable secrecy that permeates the whole system, to get it out into the open; and to empower whistleblowers – honest employees, at all levels and in all parts of the industry to speak up when they see problems.
Thank you for your time.
For more information
Federal Accountability Initiative for Reform (FAIR)
A Canadian charity that aims to protect whistleblowers who protect the public interest.
Air Safety In Canada
FAIR's observations on the state of air safety in Canada.
Whistleblowers: Traitors or Heroes?
David Hutton explains the importance of whistleblowing to all Canadians.
