Whistleblower law changes could affect you, by Marilyn Davy

New legislation to protect whistleblowers comes into effect from 1 July 2022. The new Protected Disclosures (Protection of Whistleblowers) Act 2022 makes it easier for workers to raise concerns about serious workplace misconduct.

The reason for the change is because the original Protected Disclosures Act 2000 is out of date especially with the increased focus on good governance, conduct and culture it is no longer fit for purpose.

According to recent economic crime surveys, whistleblowing ranks amongst the most effective means of detecting fraud and other serious wrongdoings.

Historically people who supplied information especially to the police were known as informants. Their identity and the information passed on to the Police always remained confidential. As a result of several events in the past the “Protected Disclosures (Protection of Whistleblowers) Act was created.

An employee makes a protected disclosure (‘whistle blowing’) when they report serious wrongdoing in the workplace that they reasonably believe is true or likely to be true. This must be done in line with workplace policies. If there are no policies, then it should be reported to the head of the organization (or to an appropriate authority in some circumstances). If an employee makes a protected disclosure under the Protected Disclosures Act their employer can’t take disciplinary (or other action) against them. If an employer does act against an employee, the employee can raise a personal grievance.

The amendments are aimed at strengthening the protection available to whistleblowers in New Zealand.

There is new detailed guidance for a receiver of information which includes acknowledging receipt, considering the disclosure, dealing with the matter, and informing the receiver what is being done. If a receiver decides to take no action, they should communicate this decision and the reasons why and what is going to happen.

The Act continues to apply only to allegations of ‘serious wrongdoing’. The definition of serious wrongdoing includes behavior that is a serious risk to the health and safety of any individual, which could apply in situations of bullying and harassment. Gross negligence including failing to take care of people, property, or the environment. Mismanagement, eg organizing or controlling things badly.

The act states that the protections for disclosers apply even if the discloser is mistaken and there is no serious wrongdoing subject to the disclosure not being made in bad faith.

While private employers are not required to have whistleblowing procedures and policies under the Bill, it is recommended to have a policy or update an existing policy given the possibility of an employee now making a protected disclosure in relation to bullying and harassment. 

If you don’t have a whistleblowing policy, it is timely to think about how an employee in your place of work can realistically raise a serious complaint.