Protecting Whistleblowers During Workplace Investigations

Feedback from employees is crucial to employers wanting to keep their finger on the pulse of a business. It is essential for management to be aware of risky behaviours occurring within a workplace, such as bullying, circumstances giving rise to easily preventable worker's compensation claims, failure to comply with regulations, corruption, or even criminal activities such as embezzlement, theft or fraud. In many circumstances, this information will only become available through the cooperation of whistleblowers.

In order to ensure that accurate information is conveyed, it is essential for businesses to make sure that potential whistleblowers are protected from persecution, ridicule or reprisals during the investigation. But how does this occur in practice?

WHAT IS A WHISTLEBLOWER?

A whistleblower is somebody who reports internal wrongdoing within an organisation, either to a senior member of the organisation or to an external authority, such as the police or the Australian Securities and Investment Commission (ASIC).

Generally speaking, protection is afforded to those who are current employees, officers or even contractors who are engaged in providing goods or services to an organisation.

Information which is provided to an employer by a whistleblower is considered a 'protected disclosure', which must remain confidential and which can only be passed on if specifically authorised by law or by the whistleblower.

HOW ARE WHISTLEBLOWERS PROTECTED?

There are various sets of state-based legislation which provide different types of protection for whistleblowers operating in the public sector. However only in South Australia are those working in the private sector afforded similar protections. In SA, the Whistleblowers Protection Act steps in to protect people who provide information:

Which the genuinely believe is true.
Which can be considered to be in the 'public interest'.
Which is provided to an appropriate authority.

Nationally, the Australian Standard AS 8004-2003 sets requirements for the implementation of whistleblowing schemes in private enterprises. Under these requirements, the identity of the whistleblower must not be disclosed unless specifically authorised by law, and the information provided must also be kept confidential.

At Federal level, the Commonwealth Corporations Act 2001 also provides specific protections for whistleblowers, which prohibits any action, including personal or professional retaliation, from being taken against a person who has disclosed wrongdoing. In the event that any such retribution occurs, the Act provides a civil right for whistleblowers to sue reinstatement of employment.

Alternatively, if a whistleblower suffers any other loss as a result of their disclosure, they can claim compensation for damages suffered directly from the alleged wrongdoer.

The Act stipulates that whistleblowers cannot be subjected to criminal prosecution or civil litigation because of their involvement in providing protected information.

However in order to fall within the protections set out in Paragraph 1317AA of the Act, it is necessary for:

The whistleblower to provide their name.
There to be reasonable grounds to suspect a breach of the Act and the report is to be made in good faith.
The whistleblower to be a current employee or director (of course, this is problematic in circumstances where the person was recently sacked or otherwise resigned from their employment)

In June 2017, the federal government announced its intention to introduce legislation which updates and improves on whistleblower protections, including potentially incentivising whistleblowers with financial rewards for providing information which has resulted in successful prosecutions.

HOW YOUR ORGANISATION CAN ASSIST WHISTLEBLOWERS

Although Australia has some legal provisions in place to ensure that whistleblowers are protected from reprisal or other involvement in litigation, there is still much more that can be done to encourage the reporting of wrongdoing observed within a company.

If you are concerned that your workplace may not provide sufficient incentive to employees to report wrongdoing, or provides insufficient support to those who do reveal sensitive information, sign up to WISE Workplace's 24/7 whistleblower program, Grapevine. The program offers independent monitoring of complaints and assessments of appropriate methods of dealing with complaints, as well as advice on how best to advise your employees that they are entitled to whistleblower protections.

Ensure that your organisation is strengthened internally by implementing a strong whistleblower policy to guarantee that all staff feel comfortable providing information relating to misconduct or inappropriate behaviour.

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