Worker claims 'serious mismanagement' by general manager, chief executive
The Employment Court of New Zealand recently dealt with a case involving protected disclosures, commonly known as whistleblowing, and the obligations of employers to maintain confidentiality.
This case highlights the issues surrounding protected disclosures in the workplace, particularly when it comes to maintaining confidentiality and the timing of such disclosures in relation to employment status.
It serves as a reminder for organisations to have clear policies and procedures in place for handling protected disclosures.
The case centred around a worker who had been employed by a government innovation agency since September 2014. In mid-July 2018, the worker was informed that his position was facing redundancy.
His employment ended on 10 August 2018. Shortly after, on 14 August, the worker raised a personal grievance alleging unjustified dismissal.
During the final days of his employment and immediately after, the worker attempted to make what he considered to be a protected disclosure under the organisation's policy and the Protected Disclosures Act 2000 (PDA).
The disclosure related to alleged misconduct by senior management, including those involved in his redundancy process. Specifically, the worker alleged "grossly improper mismanagement" by the manager responsible for the redundancy process, and also implicated the general manager of people and capability and the chief executive in his disclosure.
The PDA, which was in effect at the time, aimed to facilitate the disclosure and investigation of serious wrongdoing in organisations. It provided protection for employees who made such disclosures in good faith.
The Act defined "serious wrongdoing" to include unlawful or corrupt use of public funds, serious risks to public health, safety, or the environment, and gross mismanagement by public officials.
The employer had a protected disclosures policy that aligned with the PDA. This policy outlined a tiered reporting structure for making disclosures, depending on who was implicated in the alleged wrongdoing. The policy stated:
"Where the report was about the chief executive or a member of the board, it was to be made to the board chair. If the report was about the chair, it was to be made to an appropriate authority, in which case the employee was directed to s 3 of the PDA."
The worker initially approached the general manager of people and capability in late July 2018 to make what he considered a protected disclosure.
He sent an email asking to discuss a text message conversation, requesting confidentiality under the protected disclosures policy. The general manager responded, seeking clarification on the nature of the disclosure and what serious wrongdoing was being alleged.
Due to his concerns about the involvement of senior management, including the general manager and chief executive, in the alleged wrongdoing, the worker sought to escalate his disclosure to the board chair.
This led to a series of communications involving the general manager, the chief legal advisor, and external lawyers.
After some back-and-forth communications, the worker eventually sent his protected disclosure, consisting of 14 documents, to the board chair on 18 August 2018, after his employment had ended.
The disclosure related to the behaviour of senior management members, including those involved in his redundancy process.
On 22 August 2018, the board chair informed the worker that no investigation was warranted, stating that the disclosure "did not even approach or approximate the criteria" for serious wrongdoing under the PDA. The chair reminded the worker of his right to take the matter to the Ombudsman or a Minister of the Crown.
The worker later alleged that the board chair had breached confidentiality by disclosing his identity to the chief executive.
This allegation was based on subsequent correspondence between the chief executive and the Ombudsman's office, where the chief executive appeared to have knowledge of the worker's disclosure.
The Employment Court found no evidence to support the worker's claim that the board chair had breached confidentiality.
The Court accepted the board chair's testimony that he did not disclose the worker's identity or any of the disclosed materials to the chief executive.
The Court noted:
"I accept the [board chair's] emphatic evidence that he did not disclose the [worker's] identity, or any of the disclosed materials, to the chief executive. The [board chair] said, and again I accept, that the chief executive already knew [the worker] intended to make a disclosure."
This finding highlights the importance of clear evidence when alleging breaches of confidentiality in protected disclosure cases.
Additionally, the Court emphasised that the protected disclosure policy and the PDA do not guarantee absolute confidentiality:
"The policy does not ensure absolute confidentiality and could not realistically do so. It may not be possible, for example, to investigate a protected disclosure without involving the person who made the report."
A crucial aspect of the Court's decision related to the timing of the protected disclosure in relation to the worker's employment status.
The Court noted:
"Self-evidently, the employment ended before the disclosure was made and any possible breach by the board chair could have occurred. It follows that he could not have succeeded in claiming a breach of the duty of good faith."
This finding underscores the importance of the employment relationship being active at the time of the alleged breach for certain employment-related remedies to be available.
The Court ultimately dismissed the worker's challenge, finding no breach of the protected disclosure policy or the PDA. The Court's decision provides several insights:
"At all relevant times, the employer operated a protected disclosures policy. The policy stated that it would comply with all relevant legislation. The purpose of the policy was to facilitate the disclosure and investigation of serious wrongdoing and to protect those who disclose information," it said.
"The absence of an employment relationship at the time the alleged breach was said to have occurred was fatal to a claim for employment-related remedies," it added.
The Court also discussed the limitations of confidentiality in protected disclosure cases:
"Section 19 imposed an obligation on the board chair to use his best endeavours not to disclose information that might identify the worker, but even that comes with exceptions. The subject matter of a protected disclosure may have required the person making the report to be named in an investigation."
This case serves as a reminder for organisations to regularly review and update their protected disclosure policies, ensure clear communication channels for such disclosures, and carefully consider the timing and handling of disclosures in relation to employment status.
