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Serious wrongdoing can undermine your customers’ confidence and your employees’ trust in their colleagues. Such wrongdoing includes conduct that poses a serious risk to public health and safety. Therefore, you should have workplace policies and systems in place to both prevent and detect it. Sometimes, your employees are in the best position to report serious wrongdoing or misconduct in your workplace, as often they are the ones who witness it. It is critical to create a speak-up culture in your workplace. Some of the main reasons for the lack of reporting by employees include not knowing that whistleblowing policies are in place or being afraid of disciplinary action against them. This article explains what whistleblowing is and how to create a speak-up culture in your workplace to encourage your employees to report any workplace wrongdoing.

What Is Whistleblowing in the Workplace?

When one of your employees witnesses serious wrongdoing in your workplace, they have a right under New Zealand law to make a protected disclosure. So long as they are acting in good faith. This is known as whistleblowing.

A person commits serious wrongdoing when they engage in acts that involve:

  • using public funds or resources in an unlawful, corrupt, or irregular way; 
  • causing (including omissions) a serious risk to public health or public safety or the environment; 
  • causing (including omissions) a serious risk to the maintenance of law; 
  • committing a criminal offence; or
  • if the person is a public official, engaging in an oppressive, improperly discriminatory or grossly negligent act (including omissions).

You should outline the process for making a disclosure in your workplace policies. If you do not have a whistleblowing policy in place (only public sector agencies must do so in New Zealand), your employees can make a protected disclosure directly to you as the head of the organisation.

However, you may be involved in the wrongdoing, or have not taken any action after 20 working days following the disclosure. In this case, your employee can contact other ‘appropriate authorities.’ The Protected Disclosures Act defines ‘appropriate authorities’ to include bodies such as:

  • the Ombudsman;
  • Commissioner of Police;
  • Director of the Serious Fraud Office; and 
  • Inspector-General of Intelligence and Security.

Within your whistleblower policy, you should include terms outlining:

  • who has access to whistleblowing protections in your organisation; 
  • what are protected disclosures;
  • how your employees should make disclosures;
  • steps to ensure the employees involved in disclosures receive a fair treatment;
  • how your business supports and protects whistleblowers;
  • how you will investigate any allegations; and
  • how the policy is available.

How Are Your Employees Protected Under New Zealand Law?

Unless your employees disclose information that has legal professional privilege, their disclosures have protection under the Protected Disclosures Act. When you investigate a case, you need to keep the whistleblower’s identity confidential. Exceptions are if it is critical to disclose it to conduct the investigation effectively or to prevent serious risk to public health or safety, or the environment.

In New Zealand, whistleblowers are protected under the law from:

  • civil liability (e.g. any legal action against the whistleblower for breach of an employment contract, confidentiality or another contractual obligation);
  • criminal liability (e.g. attempting to prosecute the whistleblower for unlawfully releasing information); and
  • administrative liability (e.g. disciplinary action for making the disclosure).

Failing to respect your employees’ rights may result in a legal dispute, as they have a right to:

  • raise a personal grievance against you under the Employment Relations Act; or 
  • bring an action under the Human Rights Act. 

Creating a Speak Up Culture in Your Workplace 

To encourage disclosure in your workplace, it is critical to ensure that your employees: 

  • are aware of the whistleblowing policies and systems in your workplace; 
  • feel protected to disclose the wrongdoing; and 
  • are confident that you will take the necessary actions to eliminate it.

Creating a speak-up culture can help you deter wrongdoers, as well as encourage prompt reporting and remedial actions. Having a whistleblowing program in place sends a strong message to your employees that they have your approval and support to combat wrongdoing in your workplace. A speak-up culture also encourages managers to listen to their team members and actively encourage them to raise any concerns. 

Some best practices to help you create an effective whistleblowing program include: 

  • giving your program a positive name, such as “speak up” or “open talk”;
  • referring to disclosures as cases instead of complaints; and
  • encourage everyone (employees, contractors, secondees and volunteers) to raise their concerns. 

It is critical to ensure that your employees understand the whistleblowing policies and systems and know how to use them. You can use surveys and informal discussions with your staff at middle and junior levels to gauge their awareness level about the integrity and compliance of the program and to identify any implementation issues. 

Key Takeaways 

Whistleblowing laws in New Zealand offer certain protections to your employees when reporting serious wrongdoing in your organisation. Wrongdoing includes serious offences such as criminal activities, risks to health and safety, or misuse of funds. The whistleblower must act in good faith to receive the protections. For example, a personal work-related grievance is not protected under whistleblower protection laws. 

Having a whistleblower program in place is only a requirement for public agencies in New Zealand. However, putting whistleblowing systems in place can have many benefits for your business, such as deterring wrongdoing, and ensuring your employees report any instances of it at an early stage. It is also critical to ensure your employees know of the policies, which you can do by promoting a speak-up culture. 

If you need help to draft a whistleblower policy, LegalVision’s employment lawyers can help. Call 0800 005 570 or fill out the form on this page.

FAQs

What is whistleblowing in the workplace?

Whistleblowing refers to policies or programs you can set in your workplace to allow your employees to report serious wrongdoing to the right person in your organisation.

How can whistleblowing affect a company?

Implementing a whistleblowing policy has many benefits, including deterring wrongdoing in your workplace and providing an avenue for your employees to report any concerns. This can make your employees feel valued and reduce any stress caused by the knowledge of the wrongdoing. However, it also has some drawbacks, such as the breakdown of trust.

Are whistleblower policies mandatory?

In New Zealand, whistleblower policies are only required for public sector agencies. However, you may suspect that there is a high risk of wrongdoing in your workplace. In that case, it may be beneficial to implement whistleblowing policies and procedures and to make sure your employees are aware of them.

How can I make my employees feel safe to speak up?

Creating a speak-up culture can make your employees feel safe to speak up. When you put a whistleblowing program in place, you send them a strong message that they have your approval and support to combat wrongdoing in your workplace.

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