Workplace Whistleblowing

Anthony Drake, Senior Associate | January 2001

The Protected Disclosures Act 2000 - colloquially known as the "Whistleblowers Act" - came into force on 1 January 2001. It provides protection for employees who, in accordance with the Act, make disclosures of information about serious wrongdoings.

Background

In 1994 Neil Pugmire, a nurse at Lake Alice Hospital, expressed concerns to the management over the release of dangerous psychiatric patients into the community. Dissatisfied with the response, he went public with his concerns. He was suspended and later dismissed for his actions. (The Employment Court subsequently reinstated him.)

Purpose of the Act

The purpose of this Act is to promote public interest in the disclosure of important information - by facilitating the disclosure and investigation of matters of serious wrongdoing in or by an organisation. The Act provides procedures under which such disclosures can be made and gives statutory protection from liability or unfavourable treatment for employees making disclosures. The term "employee" is defined to include former employees, home workers, persons seconded to an organisation, and independent contractors working for an organisation.

Which disclosures are protected?

To qualify as a protected disclosure under the Act the information must relate to "serious wrongdoing". This includes:

• unlawful, corrupt or irregular use of public funds or public resources;
  
  
• acts or omissions that constitute a serious risk to public health or safety or the environment;
  
  
• acts or omissions that constitute a serious risk to the maintenance of law and the detection of offences and the rights to a fair trial;
  
  
• an act or omission or cause of conduct that constitutes an offence; or
  
  
• an act or omission by a public official that is oppressive, improperly discriminatory, grossly negligent, or that constitutes gross mis-management.

In addition the "whistleblower" employee must:

• believe the information is true, or likely to be true;
  
  
• want to disclose the information so that it can be investigated; and
  
  
• want the disclosure to be protected.

Process for making a disclosure

In general, the Act provides that disclosures must be made in accordance with internal procedures established by and published within the organisation. It is mandatory for public sector organisations to establish internal procedures.

Private sector organisations are not required to have internal procedures; but if they do, employees will be encouraged to make disclosures internally to the organisation rather than going public.

The procedures must be appropriate for receiving and dealing with information about serious wrongdoing within the organisation. The procedures must comply with the principles of natural justice, identify the persons in the organisation to whom a disclosure may be made, and include reference to an appropriate Authority in certain circumstances (where, for example, the person making a disclosure does not feel that it is being taken seriously or being adequately investigated). Information about the existence of internal procedures must be published widely within the organisation and at regular intervals.

Despite the mandatory obligations, there is no provision in the Act providing for a penalty in cases of non-compliance. In the absence of specific internal procedures, the disclosure process is less defined. An employee is simply required to make a disclosure to the head or deputy head of an organisation. If the employee believes that the head of the organisation is implicated in the wrongdoing, then disclosure may be made directly to the "appropriate Authority". An appropriate Authority includes the Commissioner of Police, Solicitor-General, Ombudsman, or Director of the Serious Fraud Office.

Employers should adopt a disclosure policy

Our recommendation is that employers should adopt a policy relating to employee disclosures about serious wrongdoing. The policy should comply with the spirit intended in the Protected Disclosures Act by:

• providing internal procedures for receiving and dealing with information about serious wrongdoing in or by the organisation;
  
  
• communicating the process for disclosure and providing information on how to use the procedures to all employees;
  
  
• undertaking investigations of serious wrongdoing within a specified timeframe from the date the disclosure was made;
  
  
• treating seriously all disclosures of serious wrongdoing made in accordance with the Act, dealing with them confidentially, and respecting employees' rights;
  
  
• co-operating with any investigations of serious wrongdoing undertaken by an appropriate Authority as defined under the Act; and
  
  
• reviewing and publishing information about the procedures at regular intervals.

If your organisation requires further information about the Protected Disclosures Act or assistance to develop a procedure policy, contact the Bell Gully Employment Law Team.