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Not all disclosures are protected

Date: 20/07/2015

A staff member of Barfoot & Thompson has been dismissed following allegations of leaking confidential sales information about overseas Chinese buyers in the Auckland market.

The media initially indicated that the agent was an employee, but it has subsequently been suggested that he was an independent contractor. Either way, his or her actions, if substantiated, could undoubtedly justify the termination of the agent’s contract.

Labour housing spokesman Phil Twyford made statements referring to the agent as a “whistleblower” who wanted to “shine a light on a very real issue… foreign investment pushing up house prices.” To characterise the agent as a whistleblower, in the legal sense, is inaccurate.

Here’s what you need to know:
Under the Protected Disclosures Act 2000, only certain types of disclosure are protected, and in very limited circumstances.

  • The purpose of the Protected Disclosures Act 2000 is to provide a mechanism for confidential disclosure of serious wrongdoing within an organisation, including by an employee of that organisation. It does not provide for public disclosure of confidential information as occurred in this case.
  • There was no wrongdoing by Barfoot & Thompson or any of its employees, and the agent’s actions do not meet the test for protection:
    • There is no suggestion that the disclosures have revealed serious wrongdoing such as corruption, conduct that poses a risk to health and safety, criminal activity or gross negligence by public officials.               
    • It does not appear that the disclosures have not been made to an appropriate authority, such as the Ombudsman or the Commissioner of Police.
  • The protections, if available, are that no civil, criminal, or disciplinary proceedings can be taken against a person for making a protected disclosure, or for referring one to an appropriate authority.

Where allegations of serious wrongdoing are raised in a way that may amount to a protected disclosure, this needs to be handled carefully. Please contact us for advice about how to manage these situations.