In 2022, Aotearoa New Zealand enacted the Protected Disclosures (Protection of Whistleblowers) Act 2022 — a law designed to facilitate the disclosure and timely investigation of serious wrongdoing in or by an organisation, and to protect the people who disclose that information.
This includes workplaces.
Protected disclosures (commonly known as whistleblowing) are an incredibly serious matter. Often, workers considering a protected disclosure are doing so because they have observed serious wrongdoing in the workplace, in the community around the workplace, or during interactions with other organisations.
Employers pay other organisations to protect them from risks by silencing employees during a protected disclosure. Often these are private investigation agencies paid to collect information on employees, or employer-paid law firms who use techniques to close down matters in a protected disclosure. A protected disclosure must be handled very carefully to protect the worker.
We all know when something is not right. Some of you reading this right now know that the law is not being enforced because people are too afraid of losing their jobs. Making a protected disclosure of serious wrongdoing ends the cycle of fear.
Under the Protected Disclosures (Protection of Whistleblowers) Act 2022, serious wrongdoing includes:
Under the Protected Disclosures (Protection of Whistleblowers) Act 2022 you can report serious wrongdoing in both public and private sector workplaces.
The Protected Disclosures (Protection of Whistleblowers) Act 2022 defines "discloser" broadly. You can make a protected disclosure if you are or were formerly:
The discloser must be an individual — companies, unions, or representatives acting on their own accord are not covered.
"Is the person a discloser? Is it about serious wrongdoing? Are there reasonable grounds? Was it made to the right recipient? Was it made in good faith?"
Kavallaris v Inframax Construction Ltd — Employment Court outlining the key questions for protected disclosure
A discloser is entitled to protection even if they are mistaken and there is no serious wrongdoing, or they do not refer to the name of the Protected Disclosures (Protection of Whistleblowers) Act 2022, or they technically fail to comply but have substantially complied. However, a disclosure not made in good faith is not protected.
Serious wrongdoing is a very wide definition. Those experiencing or observing it are likely to experience significant personal impacts:
If you are seeing serious wrongdoing, it is a serious matter and should be treated as such. In this instance, Human Resources (HR) are not your friend. HR's job as the employer's representative will be to ensure that you cannot bring a claim in this matter. Given that this is not a new problem but is a new area of law, you will need assistance to bring your claim to the attention of the relevant authorities, and confidentiality when discussing these matters.
If you or someone you know is wondering what to do with information of serious wrongdoing, any delay in seeking the right advice can hurt your chances of preventing the matter from becoming increasingly serious. It may even prevent raising the matter at all.
A discloser can make a protected disclosure to their organisation or to an appropriate authority. The Protected Disclosures (Protection of Whistleblowers) Act 2022 provides flexibility — you can go to an appropriate authority at any time regardless of whether you have also disclosed to your organisation.
To make a protected disclosure to your organisation:
You can make a protected disclosure to an appropriate authority at any time, regardless of whether you have also made the disclosure to your organisation or to another appropriate authority. Appropriate authorities include bodies like the Ombudsman, the Auditor-General, the Police, or the Serious Fraud Office, depending on the nature of the wrongdoing.
Disclosures to the media or the public at large are not protected under the Protected Disclosures (Protection of Whistleblowers) Act 2022. The purpose is to have the wrongdoing investigated by a person or body with a proper interest in receiving the information.
An employee was dismissed for making unauthorised statements to the media. The Authority stated that a newspaper did not qualify as an appropriate authority. The comments were not protected disclosures, and dismissal was justified.
If you have any doubt, contact the Ombudsman. The Protected Disclosures (Protection of Whistleblowers) Act 2022 requires the Ombudsman to provide information and guidance about which disclosures are protected, to whom information may be disclosed, how to disclose in accordance with the legislation, and the protections available. Making a disclosure to another person confidentially for the purpose of seeking advice is also protected.
The other side of not engaging in a protected disclosure is the harm that is caused. Companies like AFFCO New Zealand Limited have had a number of serious harm incidents and deaths that likely could have been avoided had workers blown the whistle on the company and forced them to change their practices.
Further reading on Talley's/AFFCO workplace deaths:
As you can see, companies that have no engineering controls on plant, or have controls that don't prevent death and injury, will keep doing the same thing over and over again unless it's reported. Protected disclosures are the way to report serious wrongdoing without harm to your employment.
This company is on the record suing journalists for defamation, which shows you how far an employer will go to make you shut up.
It's not just health and safety matters that need reporting. Financial services workers who observe incorrect reporting also may want to consider the value of a protected disclosure.
Joanne Harrison influenced the exit of four (4) Ministry of Transport employees who tried to tell their bosses that she was a fraudster. She managed to hire friends and steal over $700,000 from the ministry despite numerous staff attempting to call attention to her actions.
Joanne Harrison was employed in a senior management position at the Ministry of Transport where she defrauded the organisation of over $700,000. During her time at the Ministry, several employees attempted to raise concerns with senior management about her conduct, including suspicious invoices and travel claims.
An investigation by the State Services Commission (now the Public Service Commission) later found that four employees who raised these concerns were disadvantaged and ultimately lost their jobs during a restructuring process that Ms Harrison was involved in leading.
The investigation, carried out by former Deputy State Services Commissioner Sandi Beatie, concluded that while the redundancies themselves were part of a legitimate business change, the process was flawed and caused unnecessary humiliation to the affected staff. Ms Harrison's influence over the process was a significant factor in the negative experience of these employees. The events highlighted significant failures in the Ministry's internal processes and brought the issue of whistleblower protection into sharp focus.
Further reading on the Joanne Harrison case:
Those employees likely did not take the option of raising the matter as a protected disclosure and subsequently their chances to protect their employment were damaged.
Raising a serious wrongdoing with a properly planned protected disclosure in the right way will protect your employment whilst outing the problem in a way that can make change for the better.
Within twenty (20) working days of receiving a protected disclosure, the receiver must take actions pursuant to section 13 of the Protected Disclosures (Protection of Whistleblowers) Act 2022:
The regulation is very prescribed. It is important that this is done formally and in compliance with the Protected Disclosures (Protection of Whistleblowers) Act 2022.
When it is impracticable to complete all steps within twenty (20) working days, the receiver should complete the acknowledge, consider, and check steps within twenty (20) working days, inform the discloser how long the receiver expects to take, and appropriately update the discloser about progress.
Every public sector organisation must have appropriate internal procedures for receiving and dealing with protected disclosures. These procedures must comply with the principles of natural justice, set out a process consistent with the Protected Disclosures (Protection of Whistleblowers) Act 2022 guidance, identify who disclosures may be made to, and describe available protections and how confidentiality will be maintained.
The Employment Court emphasised that immunity from breaching confidentiality applies only if disclosures are made in accordance with the organisation's internal procedures.
Receivers may decide that no action is required — but must inform the discloser with reasons. Valid reasons include that the disclosure is not protected, does not involve serious wrongdoing, the time elapsed makes investigation impracticable, or the matter is better addressed by other means.
There have been outstanding examples of good workers doing the right thing in Aotearoa New Zealand when it comes to whistleblowing.
A number of workers raised protected disclosures about the abuse of the Accredited Employer Work Visa application with the Public Service Commission. The result was a Public Service Commission review of the scheme's processes. These workers raised the matter after they were told to approve immigration visas in a manner not befitting the regulations and the law. The disclosures also identified that a number of employers were exploiting the scheme.
A disclosure not made in good faith is not protected under the Protected Disclosures (Protection of Whistleblowers) Act 2022. This can include disclosures intended to sabotage a business or damage someone's reputation, rather than to expose genuine wrongdoing. Courts will examine the discloser's motivation and whether they actually believed the information was true.
A disclosure is not made in good faith if the discloser's purpose is not genuinely to expose wrongdoing but rather to cause harm or gain advantage. Examples include disclosures intended to sabotage business negotiations, disclosures made to damage reputations, and disclosures where the discloser does not actually believe the information is true.
A disclosure made to have an impact on a tendering process in an attempt to sabotage a business' negotiations could not be considered consistent with good faith.
A finding that the disclosure was not made in good faith was made when evidence strongly suggested that the employee did not actually believe the disclosed information was true. The inference was made that the disclosures were made to damage the reputations of the employer and two individuals.
Engineering Consulting Firm v PQR [2018] NZERA Christchurch 182
There is an important difference between an honest mistake and a disclosure not made in good faith. A discloser is protected if they have reasonable grounds to believe there is serious wrongdoing, even if they turn out to be wrong.
An employee disclosed to auditors that he had been told to lie. The Authority found he was not asked to lie, but was persuaded he had acted in good faith — he believed the allegation to be true even though the evidence did not support that conclusion. He was entitled to protection under the Protected Disclosures (Protection of Whistleblowers) Act 2022.
If you or someone you know is considering reporting serious wrongdoing in their workplace or in their employment, then any delay in seeking the right advice can hurt any chances when it comes to raising the matter.
Working For Workers does not pull any punches when it comes to stopping serious wrongdoing and raising matters of, or matters related to serious wrongdoing.
Working For Workers understands that it is hard to trust anyone when you come across serious wrongdoing in the workplace.
Often, the experience of serious wrongdoing leaves people feeling jaded, isolated and alone.
Working For Workers advocates and representatives have the skills and expertise to help you out and restore balance to the situation.
No matter how bleak it seems, there are ways and means of dealing with serious wrongdoing in the workplace.
Please contact us today to discuss the matter and start turning things around for you in the workplace.
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