Retaliation: ERA rules on proposed disestablishment against BNZ whistleblower

The Employment Relations Authority (ERA) has issued a landmark ruling declaring that the proposal to disestablish a whistleblower's role at the Bank of New Zealand (BNZ) was a form of retaliation.

The ruling concludes the eight-year legal battle between BNZ and Melissa Bowen, the former manager of the bank's Acquisition Specialists team.

The legal dispute began after Bowen made a protected disclosure to BNZ in 2016 in relation to serious concerns over an alleged wrongdoing by a senior manager.

Following the investigation, however, the manager who was the subject of Bowen's disclosure lodged a redundancy proposal to disestablish her role and the role of another employee who had supported her whistleblowing complaint.

This led to a second protected disclosure from Bowen, which later concluded, with BNZ recommencing the process of her role's disestablishment.

Bowen was not satisfied that there were any suitable roles for her at the redeployment process, which led to her being made redundant by BNZ.

Was there retaliation?

But the ERA ruled that BNZ unjustifiably dismissed Bowen after she blew the whistle in 2016.

According to the ERA, the proposed disestablishment of Bowen's role - and the entire Acquisition Specialists team - had no logical commercial basis.

And with the absence of an explanation for making such structural change, the ERA was left with the conclusion that it was proposed in retaliation for the first complaint.

"The proposal itself was unjustified but as it was an action done in retaliation for the First Complaint that was even more so," it ruled.

The ERA also ruled that BNZ did not have a clear and suitable whistleblowing policies and procedures for New Zealand, as it relied on Australian-centric policies of its parent company, National Australia Bank.

Landmark decision for whistleblowers

Bowen was emotional when reacting to the ERA's decision, reported 1News.

"I feel a little bit numb, but very, very jubilant," she told the news outlet. "It's something the bank gaslit me about for eight years, denying I made a protected disclosure."

Michael O'Brien, Bowen's lawyer, said this is the first time a "substantive finding" of retaliation against a whistleblower has been made under Protected Disclosures Act 2000.

"The implications of this decision on other organisations that attempt to punish people who choose to do the right thing by reporting serious wrongdoing in their workplace will be significant," O'Brien said in a statement.

The ERA is set to convene a hearing regarding the remedies for the case, according to O'Brien.

"Ms. Bowen will be requesting the lifting of the interim non-publication orders that are currently in place to protect the identity of the BNZ executives involved," the lawyer said.

"It is against the interests of justice that the bank executives who participated in the retaliation against Ms Bowen, and the outing of her as a whistleblower, continue to benefit from the cloak of non-publication."