Reporting Wrongdoing at Work

Reporting Wrongdoing at Work

Protected disclosures, informally known as whistleblowing, is the process by which employees can confidentially report serious concerns at work without fear of kickback.

The Act:

The Protected Disclosures Act 2000 enables this. It was introduced to facilitate the investigation and discovery of serious wrongdoing in organisations for the public good.

These laws are currently getting a refresh with the Protected Disclosures (Protections of Whistle-blowers) Bill coming into force in July 2022.

In essence, employees can have their disclosures ‘protected’ as long as they believe on reasonable grounds that serious wrongdoing has been committed, and are making their disclosure without any bad faith.

Examples of serious wrongdoing include:

• Misusing public funds or public resources;
• Acting in a way that seriously risks public health and safety;
• Conduct that seriously risks obstructing justice or the right to a fair trial;
• Criminal offences; and
• A public official acting in a way that is oppressive, discriminatory, or that constitutes gross mismanagement.

Usually, employees should make disclosures according to their internal company policies. However, employees may also be able to make the disclosure to an appropriate authority outside the organisation if done in accordance with the Bill.

Protections provided:

The organisation is required to keep the identity of the discloser confidential as far as practicable to the investigation. Employees are also protected from any retaliatory conduct by the employer for making the disclosure.

The protections provided to employees include:

• Employment protection (from dismissal, disciplinary action, or disparity of treatment);
• Contractual protection (despite any confidentiality agreements or other contracts); and
• Criminal protection (despite any restriction of disclosure by legislation).

Information shared with the company’s lawyer that is protected by professional legal privilege is not subject to the protections under this Act.

Key Changes:

While the Act previously concerned public organisations, the Bill now encompasses private organisations that use public money or resources or exercise statutory functions.

Employees were previously required to make specific reference to the Act or to the fact they wanted their disclosure protected. This is no longer the case, and the onus now sits with the employer to be aware that a disclosure engages the Act.

Importantly, employees are no longer required to exhaust internal avenues before making a disclosure to an appropriate external authority.

The Bill makes clear what employers need to do upon receiving a whistleblowing complaint:

1. Acknowledge the disclosure and the date it was received;
2. Consider the disclosure and whether it warrants investigation;
3. Check with the discloser if the disclosure has been made anywhere else;
4. Deal with the disclosure — investigating, addressing the conduct, referring the disclosure elsewhere, or deciding no action is required; and
5. Inform the discloser of what has been done with the matter.

Overall, the Bill creates clearer protections for those reporting wrongdoing at work and strengthens New Zealand’s ability to have organisations held to account.

 

If you would like to discuss your situation further, please get in touch with the Watermark team directly. We are happy to advise you.

Simon Greening (Director) and Isaac Proctor (Law Clerk)