Recent FWC case involved anonymous comments on social media
Whistleblowers put themselves on the line when they call out an employer’s bad practices, but they can also overstep the line.
The Fair Work Commission (FWC) recently heard a case where a whistleblower used social media to air their grievances. The FWC found the worker’s conduct breached his obligations under the whistleblower policy.
“It was wilful, deliberate and reckless behaviour aimed at damaging the reputation” of the general manager and operations director across the employer’s global group,” the commission said, deciding the whistleblower was sacked for good reason.
To discuss the legalities and best practice of whistleblowing, HRD Australia spoke with Tarsha Garvin, Allens employment partner, for insights.
Whistleblower protection laws
The first step is to work out whether a complaint constitutes a whistleblowing report that will be protected by whistleblower protection laws under the Corporations Act, she said.
“Sometimes it can be difficult for employers to immediately see whether something is a protected disclosure.”
In some cases, conduct is alleged that is quite clearly a breach of law, she said. At other times, it might be something that falls short of being a breach but is below community expectations or has significant implications for the company’s reputation or finances.
“They are the sorts of things that are going to be captured by the whistleblowing regime,” Garvin said.
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When a grievance meets the criteria for a whistleblower complaint, confidentiality obligations and procedural requirements must be complied with.
Problems can flare up early if the person within the organisation receives the initial complaint or report (such as HR) is not aware that what has been disclosed will fall within the whistleblowing regime and not aware of the legal obligations.
“That’s usually where there can be challenges in the initial part of the process,” she said.
Companies are obliged under the Corporations Act to have a whistleblower policy. If a worker feels compelled to call out misconduct or corruption, they should follow the official procedure contained therein.
Whistleblowing regime
When a report is treated as a whistleblower complaint, the recipient is obliged to protect the confidentiality and identity of the individual who blew the whistle.
An employer’s legal obligations and the complainant’s eligibility for “protected disclosure” – that their identity is kept secret – will be determined by whether the complaint is a breach of federal laws, including the Corporations Act, or employment laws, including the Fair Work Act.
Gavin said a personal workplace grievance is an example where definitions count.
“An employee complaining about some bullying conduct or employment entitlements wouldn’t normally [be count as protected disclosure],” she said. “But there can be instances where that grievance has some element to it which could have significant implications for the company.”
For example, an allegation of sexual harassment against a senior executive would be elevated to protected disclosure, she said.
Protect the complainant
It can sometimes be tricky to protect the whistleblower’s identity, Gavin said, especially if they have already grumbled publicly.
“If they don’t expressly provide permission for their identity to be disclosed, there are important obligations around making sure their identity is kept confidential and that any information which is likely to lead to their identification is also kept confidential,” she said.
HR managers must be on high alert. Part of the HR role includes hearing grievances, but a whistleblower case is different – in a case of protected disclosure, the complainant’s identity must not be disclosed, especially with other people within the business.
“It really has to be kept confidential,” Gavin said. “There are only very limited circumstances in which that identity can be revealed.”
A consequence of breaching confidentiality obligations is to invite the risk of civil penalties under the Corporations Act, she said, or leave the complainant prone to retaliatory or detrimental conduct, which can also ignite civil claims.
“If there are other employees that become disgruntled, they can’t be taking action against the whistleblower,” Gavin said. “That potentially becomes more likely if the whistleblower’s identity becomes known.”
Allegations of misconduct
Any workplace can find itself in sudden flux, and it’s not unknown for an employee who has raised a whistleblower complaint at the same time or soon afterwards to be under scrutiny over their performance or become caught up in restructuring discussions, Gavin said.
To the worker, that might look like a plot, which is precisely why HR must be clear to the whistleblower that their complaint report and parallel goings-on – a restructure, say, or redundancies – are very separate processes, she said.
“An employee might take the view once they are notified about redundancy, for example, that their position has been made redundant because they made these whistleblower complaints – that, in their mind, detrimental conduct has been taken against them,” Gavin said. “That can be difficult to manage.”
Steps to protect identity of whistleblower
If allegations are serious enough to warrant investigation, it may be very hard to not reveal a complainant’s identity, Gavin said. In some instances, the employer is allowed to disclose information that might lead to the identification of the whistleblower, so long as it’s reasonably necessary for the purposes of investigating that disclosure, and if they take all reasonable steps to reduce the risk of identifying the whistleblower.
“They can’t go to witnesses and tell the person the whistleblower’s name, but they can put allegations to them in a de-identified way, which might mean the witness works out who the person is from the detail of the allegation,” she said.
“It is a risk, and it is best practice to let the whistleblower know that this is being investigated,” Gavin said. “They may have to disclose some information that might lead to their identification, but that’s done to try to at least make sure those allegations are properly investigated and addressed.”