Whistleblowing legislation is set to change and affects all business owners. Since the year 2000, we have had a piece of law in New Zealand that has facilitated “the disclosure and investigation of serious wrongdoing in the workplace” – a.k.a. whistleblowing. This piece of law protected your staff if they were to report concerns relating to serious concerns like fraud and/or workplace misconduct. On 1 July 2022 the Protected Disclosures Act 2000 will be replaced by the Protected Disclosures (Protection of Whistleblowers) Act 2022. This gives a little more protection to your staff, so get ready.
What is changing?
While the new Act continues to have the purposes of the original one, it includes the following four additions which are important for business owners to understand:
- It extends the definition of serious wrongdoing to specifically include behaviour that poses a serious risk to the health and safety of any individual.
- It enables a discloser to report serious wrongdoing to an appropriate authority at any time (rather than having to go to their organisation first) as well as clarifies the ability of the appropriate authority to decline or refer the disclosure.
- It strengthens protections for disclosers by specifying what a receiver of a disclosure should do.
- It clarifies the potential forms of adverse conduct disclosers may face.
The new legislation is designed to help promote the public’s interest in facilitating disclosing and investigating serious wrongdoing in the workplace, while ensuring those who report concerns are protected. In the first reading of the proposed Bill, Peeni Henare commented that an “if in doubt, speak up” culture is important to act as a deterrent to prevent wrongdoing in the first place.
More recently, Chris Hipkins described the new legislation as “more people-focused” and believes it makes the rules more accessible and understandable. In his statement about the Act he said “We will build awareness of the new legislation so that organisations know what they need to do, and people can better understand the protections available and feel safer raising their concerns when they do see something seriously wrong in their workplace. It’s vital that employees and workers can freely speak up when they have concerns about ethics, risks, financial impropriety and safety in the workplace – without the fear of recrimination.”
Four Frequently Asked Questions
Who is a discloser?
A discloser is a person who has an employment-type relationship with the organisation they are disclosing about. The definition is very broad and includes current and former employees, homeworkers, secondees, contractors, volunteers and board members.
What protections are there for my staff member/ a person reporting serious wrongdoing?
A discloser is entitled to protection for whistleblowing made in accordance with the Act, even if they are mistaken and there is no serious wrongdoing. The protections a discloser is entitled to are
- No retaliation or less favourable treatment, and
- Immunity from civil, criminal and disciplinary proceedings.
These protections extend to people who volunteer supporting information for the disclosure. If you do take action against an employee for making a protected disclosure, your employee can raise a personal grievance and may be able to bring action under the Human Rights Act as detailed here
What do I do if I become the receiver of a protected disclosure?
Within 20 working days of receiving a protected disclosure, you will need to acknowledge the receipt of the disclosure, consider whether it warrants investigation, and deal with the matter by doing one or more of the following:
- Investigating the disclosure.
- Addressing any serious wrongdoing by acting or recommending action.
- Referring the disclosure to an (or another) appropriate authority.
- Deciding that no action is required.
You will need to inform the discloser about what you have done or are doing to deal with the matter. If you are unable to complete these actions within 20 working days, you should begin the process and inform the discloser how long it may take.
Are there any particular procedures or systems I need to set up?
As a small business director, you run a private sector organisation. As such you are not required by the Act to establish internal procedures for protected disclosures. However; your existing Employment Contracts and/or policies may need updating to reflect this change – contact us if it’s time your employment documentation had an overhaul!