Referral to arbitration
If a public entity does not enact the recommendations that the Public Interest Disclosure Commissioner (PIDC) made in the final investigation report (either in respect of a finding that a reprisal was taken against an employee or in respect of the remedy to be provided to that employee), then either party - the public entity or the PIDC - may refer the matter(s) in dispute to an agreed-upon arbitrator for determination.
Disagreement on arbitrator
If the PIDC and the public entity do not agree on the arbitrator to be appointed, either of them may serve on the other a written notice setting out the name of the proposed arbitrator and a request for agreement to that proposed arbitrator.
If the PIDC and the public entity have not agreed upon an arbitrator within seven days after the service of the notice (mentioned above), a judge of the Supreme Court may, on application by the party who gave the notice, appoint an arbitrator.
Arbitrator's powers
An arbitrator has the power:
- to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath in the same manner and to the same extent as a judge of the Supreme Court;
- to compel, at any stage of a proceeding, any person to produce documents and any other item and/or information that may be relevant;
- to administer oaths and solemn affirmations;
- to accept any evidence, whether admissible in a court of law or not;
- to make, or cause to be made, examination of records and inquiries the arbitrator considers necessary;
- subject to any limitations prescribed in the regulations in the interests of defence or security, to enter any premises of the affected public entity where work is being or has been done by the employee, inspect and view any work, material, machinery, appliance, or article in the premises, and require any person in the premises to answer all questions relating to the matter before the arbitrator; and
- to authorize any individual to exercise any of the powers set out above and report back to the arbitrator.
Award of arbitrator
An arbitrator must, having considered the matters in dispute, render an arbitral award. This award must contain a summary of the representations made to the arbitrator, the award, and the reasons for the award. If the arbitrator finds that a reprisal has been taken against an employee, the arbitral award may require the affected public entity:
- to permit the employee to return to their duties;
- to reinstate the employee or pay damages to the employee if the arbitrator considers that the trust relationship between the public entity and the employee cannot be restored;
- to compensate the employee in an amount not greater than the remuneration that the arbitrator considers would, but for the reprisal, have been paid to the employee;
- to pay an amount to the employee equal to any expenses and any other financial losses that the employee has incurred as a direct result of the reprisal;
- to cease an activity that constitutes the reprisal;
- to rectify a situation resulting from reprisal; or
- to do or refrain from doing anything in order to remedy any consequence of the reprisal.
An arbitral award is binding on the PIDC, the employee who made the complaint of reprisal, the individual(s) who have taken the alleged reprisal and the public entity. If this award requires any action by a public entity, the public entity must take the action as soon as is reasonably practicable.
Authority to amend or vary arbitral award
The arbitrator may, upon application by any of the parties who presented evidence or made submissions, amend, alter, or vary a provision of an arbitral award if the arbitrator is of the view that the amendment, alteration, or variation is warranted having regard to:
- circumstances that have arisen since the making of the award or of which the arbitrator did not have notice at the time of making the award, or
- any other circumstances the arbitrator considers relevant.