Whistleblowing

A protected disclosure under New Zealand law is information about serious wrongdoing that you reasonably believe to be true and report through appropriate channels. The Protected Disclosures Act defines serious wrongdoing as criminal offences, breaches of legal obligations, miscarriages of justice, dangers to public health or safety, environmental risks, or deliberate concealment of any of these matters.

The disclosure must be made in good faith, meaning you genuinely believe the information is substantially true and you're reporting it for the right reasons, not for personal gain or to cause harm. You don't need absolute proof of wrongdoing, but you must have reasonable grounds for your belief based on credible information.

Not all workplace complaints qualify as protected disclosures. Personal grievances about unfair treatment, disputes over pay or conditions, or disagreements with management decisions typically don't meet the threshold unless they involve serious breaches of legal obligations or pose risks to health and safety.

The Protected Disclosures Act establishes a hierarchy of reporting channels, generally requiring you to report internally to your employer first unless exceptional circumstances apply. Most organisations have internal policies and procedures for handling disclosures, often through designated officers or confidential reporting systems.

You can report directly to external authorities if the wrongdoing involves your employer, if you believe your employer won't take appropriate action, if you've already reported internally without adequate response, or if you reasonably fear retaliation. External authorities include regulatory bodies relevant to the type of wrongdoing, such as WorkSafe for health and safety issues or the Serious Fraud Office for financial crimes.

In limited circumstances, you may be able to make disclosures to Members of Parliament or the media, but this requires meeting additional criteria and is generally considered a last resort. The law provides specific protections for these public disclosures, but the threshold is higher and the risks greater.

The Protected Disclosures Act prohibits employers from taking retaliatory action against employees who make protected disclosures. Retaliation can include dismissal, demotion, harassment, discrimination, changes to duties or working conditions, or any other detrimental treatment.

If you face retaliation, you may have grounds for a personal grievance claim under the Employment Relations Act. The law provides remedies including reinstatement, compensation for lost wages, and damages for humiliation, loss of dignity, and injury to feelings. In serious cases, penalties may also be imposed on the employer.

The protections extend beyond direct retaliation to include protection from being disadvantaged in employment opportunities, references, or future career prospects. However, the protections only apply if your disclosure meets the legal requirements and was made in good faith through appropriate channels.

Before making a protected disclosure, gather and organise evidence that supports your reasonable belief that serious wrongdoing has occurred. This might include documents, emails, photographs, witness statements, or records of conversations. However, be careful not to breach confidentiality agreements or access restrictions when collecting evidence.

Document the wrongdoing systematically, including specific dates, times, locations, people involved, and detailed descriptions of what occurred. Keep contemporaneous notes of incidents and maintain copies of relevant communications. This documentation will be crucial if you later face retaliation or need to defend your disclosure.

Also document the disclosure process itself, including when and how you reported the wrongdoing, who you reported to, and any responses or lack thereof. If you face retaliation, detailed records of changes in treatment, communications, and impacts on your work will be essential for any legal action.

Once you make a protected disclosure, your employer has an obligation to investigate the allegations appropriately and take corrective action if wrongdoing is found. The investigation should be conducted fairly, thoroughly, and in a timely manner, with proper consideration given to confidentiality and the protection of all parties involved.

During the investigation, you may be required to provide additional information or participate in interviews. You have the right to be treated fairly throughout this process and to be protected from retaliation. However, you also have obligations to cooperate honestly and not to interfere with the investigation.

Possible outcomes include finding that wrongdoing occurred and taking corrective action, finding insufficient evidence to substantiate the allegations, or determining that the disclosure doesn't meet the threshold for serious wrongdoing. Regardless of the outcome, you remain protected from retaliation for making the disclosure in good faith.

The Protected Disclosures Act includes provisions to protect the identity of people making disclosures, but confidentiality isn't absolute. Your employer or the investigating authority may need to reveal your identity to properly investigate the allegations, particularly if you're the only source of certain information.

You can request that your identity be kept confidential, and authorities should make reasonable efforts to protect your anonymity where possible. However, in some cases, effective investigation or legal proceedings may require disclosure of your identity, and you should be informed if this becomes necessary.

Consider the practical realities of confidentiality when making your disclosure. In small workplaces or where you have unique access to information, it may be difficult to maintain anonymity even if your identity isn't officially revealed. This doesn't affect your legal protections, but it's important for planning and risk assessment.

While there's no specific time limit for making a protected disclosure, timing can affect both the effectiveness of your disclosure and your legal protections. Report wrongdoing as soon as reasonably possible after becoming aware of it, as delays may affect the credibility of your concerns or limit the ability to investigate effectively.

If you face retaliation after making a disclosure, you generally have 90 days from when the retaliatory action occurred to raise a personal grievance. This time limit is strict, so it's important to act quickly if you experience adverse treatment following your disclosure.

Consider also the ongoing nature of some wrongdoing. If the serious wrongdoing is continuing, you may need to make additional disclosures or escalate to external authorities if internal reporting doesn't result in appropriate action within a reasonable timeframe.

Consider getting legal advice before making a protected disclosure, particularly if the wrongdoing involves senior management, if you're concerned about potential retaliation, or if you're unsure whether your concerns meet the legal threshold for protection. A lawyer can help you assess the strength of your case and choose the most appropriate reporting channel.

Seek immediate legal advice if you face any form of retaliation after making a disclosure. This includes obvious actions like disciplinary proceedings or changes to your role, as well as subtle forms of adverse treatment. Early legal intervention can help protect your rights and preserve evidence.

Legal advice is also important if your disclosure involves complex regulatory matters, if you're considering going to external authorities or the media, or if you're a senior employee whose disclosure might have significant implications for the organisation. The stakes in whistleblowing cases can be high, making professional guidance valuable.