The term “whistle blower” evokes images of people sitting in dark rooms downloading top secret information before hurrying to some shady rendezvous spot to hand it over to a mysterious intermediary.
In New Zealand this scenario seems possible but unlikely, and it is instead ordinary people doing ordinary jobs who may find themselves having to blow the whistle on something going on at work.
We have had “whistle blower” protections in place for some 20 years – but they are not a blanket license to do and say anything to anyone.
A disclosure will only be protected under the Protected Disclosures Act if it is made for the purpose of allowing the concern to be investigated. Further, the employee must have reasonable grounds to believe it is true.
Most critically, to qualify as a protected disclosure the matter complained about needs to amount to “serious wrongdoing”. The threshold for this is high, and includes offences, serious risks to the maintenance of law, public health or safety, or to the environment.
It also covers other serious wrongdoing specifically in the public sector, such as corrupt, or unlawful use of funds, and gross mismanagement.
In one case involving a protected disclosure, an employee disclosed concerns she had about whether a patient, subject to a mental health compulsory treatment order, was being properly cared for after she became suspicious that the patient had been sexually assaulted. If the suspicions had proved correct, a criminal offence may have occurred.
While that was “serious wrongdoing”, and the employee’s protected disclosures to her employer and other appropriate authorities were legitimate, she also made disclosures that were not protected – namely to the patient’s family, and to the media.
Further, by the time she made these disclosures, the Employment Court considered she no longer had reasonable grounds to believe the claims were true, given the findings of various inquiries made by different agencies into her disclosure. Ultimately, her actions were found to have caused distress to the patient, and she was fined by the Employment Court for her unlawful conduct.
For an employee making a protected disclosure, the first step is to find out if their employer has an applicable policy. If one exists, the employee should make the disclosure in accordance with the required procedure. Although not legally necessary, employees should also clearly label it as a ‘protected disclosure’ to avoid the risk of it being miscategorised as a garden variety complaint.
There are escalation procedures in the Act for situations where there is no internal procedure, or where the person named in the policy is not an appropriate recipient of the disclosure because of their potential involvement, or connection to the people involved. In those cases, the employee can make the disclosure to the head or deputy head of the employer.
The protected disclosure can also be escalated to the ‘appropriate authorities’ if certain criteria are met, such as urgency, exceptional circumstances, lack of action on the protected disclosure after 20 working days, or the head of the organisation is involved in the serious wrongdoing.
Appropriate authorities are specified entities, including the Commissioner of Police, the Auditor General, the Health and Disability Commissioner, the Public Service Commissioner, or the disciplinary body of a relevant profession.
There is a further escalation avenue, to the Ombudsman or a Minister of the Crown, in situations where the protected disclosure has been made but the discloser believes it is not being investigated, or has been investigated but no action taken, or insufficient progress has been made within a reasonable timeframe.
While the Act provides that the discloser’s name should be kept confidential, there are exceptions. These include where the person’s identity needs to be disclosed for ‘natural justice’ reasons. In practice if the disclosure raises issues regarding an individual’s conduct, there is a reasonable likelihood that in investigating that conduct, the name of the discloser will need to be revealed.
Having said that, the Act’s protections do not end with confidentiality. An employee is entitled to protection from retaliatory action, and can bring a personal grievance if they suffer it. They also have potential recourse for ‘victimisation’ under the Human Rights Act 1993 if they are discriminated against because they, a relation or associate has engaged their rights under the Protected Disclosures Act.
A discloser also has protection from liability in civil and criminal proceedings, and is protected from disciplinary measures being taken against them.
While the Act allows for protections to still apply if some technicalities are not complied with when the disclosure is made, an employee will not be protected if they are acting in bad faith.
In some cases, disclosures have been found not to be legitimate protected disclosures, because the purpose of the disclosure was self-interest rather than to enable the investigation of wrongdoing, or because the employee could no longer claim to reasonably believe that the wrongdoing had occurred.
The existing regime is not straightforward, and it would be a mistake for employees to think that they will automatically be protected from any consequences of disclosing wrongdoing. It is important to carefully follow the procedures set out in the Act and an employer’s policies in order to receive these protections.
The Protected Disclosures Act is currently being reviewed, with the Select Committee having reported back in March this year. The new bill, if it becomes law, does not vastly change the regime, but should simplify it and make it easier to navigate for employees who want to blow the whistle.