How to: Protection for "whistle-blowing" employees

Introduction

The PROTECTED DISCLOSURES ACT 2000 protects you if you disclose information about illegal or harmful acts that are committed by your employer or by one of your co-workers. Employees who do this are sometimes referred to as "whistle-blowers".

If your disclosure of the information is covered by the Act, no-one can take any legal or disciplinary action against you. If your employer retaliates in some way at work, you can bring a personal grievance. Your protection against legal action also applies if you've already left the job at the time that you disclose the information.

Who is protected by the Protected Disclosures Act?

You're protected by the Act if you disclose information about "serious wrongdoing" that's committed in or by the organisation in which you work. But you must believe on reasonable grounds that the information is true or likely to be true, and your reason for disclosing the information must be so that the wrongdoing can be investigated.

You're protected whether you work in the public or the private sector. The Act also applies to very small "organisations", such as an employer and a single employee.

You're not protected if you make allegations that you know are false or if you otherwise act in "bad faith".

What does "serious wrongdoing" mean?

"Serious wrongdoing" can be any of the following things:

  • the illegal, corrupt or irregular use of funds or resources by a public-sector organisation
  • conduct that is a serious risk to public health, public safety or the environment
  • conduct that is a serious risk to the maintenance of law, including the prevention, investigation and detection of criminal offences and the right to a fair trial
  • any conduct that is a criminal offence
  • conduct by a public official that is oppressive, improperly discriminatory or grossly negligent, or that amounts to gross mismanagement

To whom can I disclose the information?

You're protected by the Act only if you disclose the information to the people specified in the Act. You cannot simply disclose the information to anyone you choose. Whom you're required to go to depends on the circumstances:

  • If the organisation has no set internal procedure for disclosing information about serious wrongdoing, you can go to the head or deputy head of the organisation.
  • If there is a set internal procedure, you must follow it, and disclose the information in the way that this procedure specifies and to the person that the procedure specifies. But you can go instead to the organisation's head or deputy head if the set procedure requires you to go to someone whom you think is or may be involved in the wrongdoing, or requires you to go to someone whom you think has a relationship or association with someone who is or may be involved.

(A public-sector organisation must have a set procedure to deal with disclosures of wrongdoing. It must publicise this procedure widely and regularly within the organisation.)

  • You can disclose the information to an official authority outside the organisation (such as the Police, the Serious Fraud Office, the Ombudsman's office, or the Parliamentary Commissioner for the Environment) if:
  •  
    • you think the head of your organisation is or may be involved in the wrongdoing, or
    • you think the matter is urgent, or
    • you've disclosed the information within the organisation and nothing has been done after 20 working days
  • You can go to a Government Minister or an Ombudsman if you've already disclosed the information internally or to an official authority, and you believe that the person or authority you told:
  •  
    • has decided not to investigate it, or
    • hasn't investigated it within a reasonable time, or
    • has investigated it but hasn't taken or recommended any action

How does the Protected Disclosures Act protect me?

If your employer fires you for disclosing the information, or retaliates against you in some other way, you can bring a personal grievance on the ground of unjustified dismissal (see How to bring a wrongful dismissal claim against your employer) or unfair disadvantage (see How to bring a personal grievance against your employer).

Further, you cannot be charged with a criminal offence, you cannot be sued for damages in a civil Court action, and you cannot be subjected to any disciplinary action. These protections overrides any other law or any legal agreement you've entered into (such as your employment agreement).

If you're victimised for disclosing the information, or for encouraging someone else to disclose information, you can also complain to the Human Rights Commission (see How to complain about discrimination to the Human Rights Commission).

Getting advice from the Ombudsman on what to do

You can approach the Ombudsmen's office for advice if you're considering disclosing information of serious wrongdoing or if you've already disclosed it. You can contact them in person, by phone or by writing them a letter.

The Ombudsmen must give you guidance and advice on how the PROTECTED DISCLOSURES ACT 2002 works. They will also explain to you what the general role is of each of the different official authorities so that you can decide which authority to approach if necessary.

There are Ombudsmen in Auckland, Wellington and Christchurch. Their contact details are as follows:

  • Level 5, 17 Albert St
    Auckland
    Ph: (09) 379 6102
    or 379 6103
    Fax: (09) 377 6537
  • Level 14, 70 The Terrace
    PO Box 10152
    Wellington
    Ph: (04) 473 9533
    Fax: (04) 471 2254
  • Level 6, 764 Colombo St
    PO Box 13-482
    Christchurch
    Ph: (03) 366 8556
    Fax: (03) 365 7935

Will it be made known that I disclosed the information?

People to whom the information is disclosed must do their best not to release any information that might identify you, unless:

  • you've consented in writing to this information being released, or
  • releasing this identifying information is essential in order for your allegations to be properly investigated, or to prevent serious risk to public health or safety or to the environment, or to comply with the principles of natural justice

Your name can't be revealed through an official-information request (see How to make an official information request). The request must be refused if it would identify you.



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