FAIR testifies to Listeriosis Inquiry

Executive Director David Hutton testifies to the Food Safety Subcommittee which is investigating the 2008 Listeriosis outbreak. 
1 June 2009

Prepared testimony
I’d like to thank the committee for the opportunity to give testimony.

I represent FAIR (Federal Accountability Initiative for Reform). FAIR is Canada’s first public interest organization created to protect whistleblowers – by which I mean employees who seek to protect the public interest by speaking out when they see wrongdoing – and has been doing valuable work in this field for the past 11 years.

I’m going to cover two closely related topics in my remarks:

1. The nature of  the management systems upon which the industry and ultimately the public are increasingly dependent  for ensuring  food safety
2. The vital role that whistleblowers play in protecting the public when these systems fail, and the challenge of protecting such people from reprisals.

The Food Industry and Management Systems

As we have heard, the food industry is changing rapidly, from a host of modest family farms to a few industrialized producers operating on a huge scale. This change has brought economies of scale but it has also created new risks. Just like transporting people in ever-larger passenger aircraft, the system is very economical and efficient while it works – but when it goes wrong the result can be catastrophic with many lives lost.

We’ve heard a great deal about management systems as a way to safeguard food safety, but you may wonder why I choose to comment on this subject. Before I took on my current role, my career was spent working on management systems: as senior executive in industry and as a management consultant. I’ve been doing this type of work since the mid eighties, long before most of the food industry had even heard about management systems.  I have written two books on the subject that have been translated and distributed on four continents. So I feel very well qualified to give you some input on this subject, and as you will see there is a connection to whistleblowing.

Let me tell you that without these management systems and the techniques that they embody it would not be possible today to build a reliable automobile, or to provide a safe blood supply, or to launch men into space: it no accident that HACCP had its origins in NASA. As our food system evolves into a vast industrial complex, it won’t be possible to have a safe food supply without diligent and expert implementation of these systems.

However, as effective as these systems are when they are working well, they are also fragile: they require considerable expertise to implement, and they require knowledgeable and absolutely consistent support from management, from the CEO down to the front line. The moment the technical expertise is compromised or the management support weakens, the system begins to degrade and it will likely soon fail.

All it takes for our food supply to be poisoned is for one company in financial difficulty to start cutting corners, or one manager on the night shift to overlook a problem rather than stop the production line to fix it. In other words, we are only one bad actor or one incompetent decision-maker away from a catastrophe.

Let me illustrate this. The USA recently suffered a devastating Salmonella outbreak, caused by just one family-owned peanut processing plant. This plant sickened an estimated 19,000 people in 43 states, contributed to nine deaths, and triggered the largest food recall in US history. About half of those who fell ill were children. So you see how vulnerable we are.

That’s why it is absolutely essential that we have mechanisms in place to inform us when things are going wrong in the food system – before disaster strikes. This includes vigilant and effective oversight by the government, but it must also include whistleblower protection for employees who can raise the alarm. In fact this is exactly what the USA is doing, in comprehensive legislation brought before Congress last week. [I have provided a summary of this bill for committee members.]

Let me turn to the subject of whistleblowers and whistleblower protection.

What is a Whistleblower?

The typical whistleblower is an employee who, in the course of doing their job, comes across some misconduct, or finds themself in possession of information that is embarrassing to their organization or to their bosses.

We are not talking about any situation where someone comes into conflict with management. We are talking about situations where the public interest is at risk, where the person who comes forward is trying to protect us: and in doing to they put their own careers at risk.

Why should we protect whistleblowers?

It is just plain common sense that if the hundreds of thousands of people who work in the food industry could safely report wrongdoing or potential threats to the public, we would be much safer than we are today. There is also compelling statistical evidence from other sectors suggesting that whistleblowing is potentially the most effective method that we have for exposing problems and wrongdoing.

What typically happens to whistleblowers?

Some of you may be thinking “Shouldn’t people come forward anyway: why do they need protection?”

The typical experience of someone who tries to draw attention to concerns that their bosses don't want to hear about, 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.  This pattern of abuse and bullying goes on and on until the employee cannot take any more. At some point their doctor will say to them "You cannot go to work any more because it is killing you". And at that point the organization has succeeded in ridding the workplace of them, and silencing them.

But it goes further than that; because the employer will often make every attempt to make the whistleblower unemployable, so that they lose not just their immediate job but also their career.  One US expert remarked that the typical fate of a nuclear engineer [whistleblower] is to end up selling computers at Radio Shack. The consequences for these people and their families are enormous: loss of livelihood, loss of their home, and very often, the disintegration of the family. They also typically end up with post-traumatic stress symptoms: nightmares, flashbacks, chronic depression, and suicidal thoughts. Regrettably, some are driven to commit suicide.

You might expect this sort of vindictive behaviour from a firm whose profits are threatened, but surely not from government employers: as Canadians we have been raised to trust our government. But you'd be entirely wrong. Let me give you a few examples.

Joanna Gualtieri

Joanna Gualtieri is the founder of FAIR, the organization that I am now running. She blew the whistle on waste and extravagance in Foreign Affairs in the early 90’s, and was harassed out of her job. She sued her bosses for harassment, and that lawsuit is now in its 11th year.  How could it possibly take so long? Well, government lawyers, paid by us, have dragged out the pre-trial discovery process by dreaming up more than 10,500 questions to put to her. They have subjected her to over 30 days of pre-trial examination when the accepted norm is one day. After 11 years there is still no end in sight.

The only conclusion than I can form about this case is that the government lawyers are doing everything within in their power to crush this person, financially and emotionally, and to break her spirit. It seems the most outrageous and blatant abuse of the governments’ power – and cases like this serve as a chilling warning to others.

What’s even more bizarre is that Ms. Gualtieri’s case was one of the factors that motivated politicians to enact the current whistleblower legislation. Her case was even mentioned in the 2006 campaign platform that promised protection to whistleblowers. Yet since then absolutely nothing has been done about her case, or others like it.

Dr. Shiv Chopra and Health Canada

I'll mention one other case which is particularly relevant. You may recall the three Health Canada employees who in 1998 testified to the Senate that they were being pressured to approve veterinary drugs into the food chain without the testing required by the Food and Drug Act. In 2004 Dr. Shiv Chopra and his two colleagues were fired, with our Senate unable to protect them. Instead, they were forced to take legal action to challenge their dismissals, and they are currently are in their fifth year of hearings. 

I could cite many other cases, but these two illustrate my point: employers, including government departments, will stop at nothing to crush and silence such conscientious employees, rather than deal with the issues that they are raising.

The state of Canadian whistleblower legislation

Some of you may be thinking: “Aren’t whistleblowers already protected by the law?” If only they were!

In Canada we are latecomers to whistleblower protection: the USA first introduced federal legislation more than 30 years ago. In Canada, the Public Servants Disclosure Protection Act (PSDPA), as amended by the Accountability Act came into force in 2007. It was claimed to offer “ironclad” protection to whistleblowers, and to be the “Mount Everest” of whistleblower legislation around the world. However, these claims now seem patently ridiculous.

As a result of this Act we have today a Public Sector Integrity Commissioner, who is an agent of Parliament, with extensive powers of investigation under the Inquiries Act (if she chooses to use these powers), a staff of 21 with an annual budget of $6.5 million. Yet after two years of operation, her office has found not one single example of wrongdoing in the entire federal public service.

This outcome is remarkable when you consider that the Commissioner is responsible for protecting about 400,000 employees, in a system which consumes about half a billion dollars daily.

The Commissioner has also found not one single example of reprisal against someone for trying to raise concerns. Yet in surveys conducted by Statistics Canada more than one in five public servants report that they are have been harassed, mainly by their bosses. And our organization receives a constant stream of inquiries from people in a desperate situation – hounded by their department for raising concerns that sometimes have very serious implications.

Anyone who believes that this system is working must also believe earnestly in Santa Claus and the Tooth Fairy.

And that’s just the federal public service. There isn’t even the pretense of any protection for private sector whistleblowers including the hundreds of thousands of people who work in the food industry. Any who raise concerns have nothing to protect them.

In summary

I’m going to leave you with one very simple message, based on my two decades of experience with management systems and what I’ve learned about whistleblowing in the past five years. If you don’t remember anything else that I tell you today, please remember this.

Unless we create effective whistleblower protection for people working in the food industry – from the public servants who make policy and oversee the industry, to the managers and workers on the production lines – Canadians will continue to die needlessly because of avoidable failures within the food supply.

I do not claim that whistleblower protection is a complete solution – it is obviously just one component of a comprehensive solution – but I am saying that it can provide an invaluable safety net to help protect us when everything else has failed.

It is long overdue for Canadian parliamentarians to step up to the plate and introduce comprehensive whistleblower protection for everyone who works in the food industry, both in government and in the private sector. I urge this committee to recommend this important step.

Thank you for your time.