Whistleblowers in the workplace should be protected, not prosecuted. McDonald Murholme lawyer Bianca Mazzarella explains the best practice for HR experts to handle a whistleblower situation.
See below article for further details.
How do you manage whistleblowers at work?
There has been a recent spotlight on the protection of whistleblowers after a former senior compliance officer, Sally McDow from Origin Energy, commenced legal action against her employer for a non-genuine redundancy.
McDow became a whistleblower in 2015 and believes her redundancy is linked to raising concerns about Origin’s conduct. McDow’s situation has shown the lack of protection offered by some employers for employees who come forward to report unlawful or immoral behaviour in a company.
Employers should encourage employees to raise concerns to provide a safe working environment for all staff.
How should employers handle a whistleblower situation?
Policies and procedures are integral to ensuring a whistleblower situation is handled efficiently and confidentially.
To maintain the confidential nature of concerns raised by an employee, it is recommended an external body investigates any claims that are made and provides an unbiased resolution.
Employers should implement internal policies and ensure all employees are aware of their rights under the Fair Work Act 2009 (Cth).
The confidentiality of complaints is vital to protect employees and make them feel comfortable enough to report any instances of unlawful or immoral behaviour. Maintaining confidentiality also limits the potential for any consequence to befall anyone who chooses to submit a complaint.
It is necessary for the situation to be dealt with quickly and efficiently, with the results being handed down in a timely manner.
An appeals process is also recommended as some employees may feel that any claims deemed unsubstantiated may not have been investigated adequately. This may include access to an external body.
Should employers offer incentives to whistleblowers?
Some HR experts have suggested that whistleblowers be offered an incentive to come forward and report on their employers. However this would go against the purpose of whistleblower protections, being to protect rather than reward the whistleblower.
Further, there is the obvious risk of disingenuous complaints or complaints made with an ulterior purpose, which itself would undermine the protections for those raising genuine concerns.
There is also the risk that an internal avenue is chosen to access compensation rather than a more appropriate forum. For example, an employee who is experiencing bullying in the workplace may choose to become a whistleblower on the organisation as a whole, instead of dealing with the issue in the Fair Work Commission, being the appropriate forum.
Protections for whistleblowers?
The general protections provisions under the Fair Work Act 2009 (Cth) aim to protect employees from any consequences they may face after making a workplace complaint.
It is important employers remember they cannot punish employees for planning to report, or reporting, unlawful or immoral behaviour within the workplace.
Section 340(1) of the Fair Work Act 2009 (Cth) protects employees who have workplace rights, exercise those rights or propose to exercise those rights. The right to make a complaint is the primary workplace right protecting whistleblowers.
If the subject of the complaint relates to financial impropriety or a breach of the Corporations Act 2001, the employee’s protections lie within the whistleblower protection provisions of the Corporations Act 2001.
How to address repeat whistleblowers?
Many employers are wary of repeat offenders when it comes to making whistleblower claims.
Creating a company culture that supports those who make complaints is vital, even if those claims turn out to be unsubstantiated.
Repeat offenders should be further educated on the policies within their organisation, as well as what constitutes a valid complaint, with any complaint made being investigated fully.
Those who make repeated unsubstantiated complaints should not be given a formal warning, as it may have the adverse effect of deterring those who have legitimate complaints to come forward. However, if it were found that the complaints were knowingly false or made for an improper purpose disciplinary action may be warranted.
Benefits for supporting whistleblowers
Employees who feel supported enough to become a whistleblower in their organisation can have a beneficial effect as a whole.
It is easy to see the importance of supporting whistleblowers, to ensure employees do not fear retribution for raising concerns that could result in the termination of their employment.
If the concerns of an employee are investigated properly and substantiated reports are acted upon, it could prevent an accident, financial loss to the employer or even save a life.
If you feel you have been unfairly targeted as a result of reporting a workplace concern, seek legal advice.
Bianca Mazzarella is a lawyer at McDonald Murholme.
Reference: How should employers handle a whistleblower situation? Workplace Info, 9th March 2016