Whistleblowing is an action taken by a person, often an employee, revealing information about activity within a private or public organisation that is conisdered illegal, immoral, illicit, unsafe or fraudulent.
Julian Assange founded WikiLeaks and he has been persecuted for years over the release of classified military documents and videos from the United States over the war it waged in Iraq and Afghanistan, highlighting issues such as abuse of prisoners in custody, human rights violations and civilian deaths.
In 2000, New Zealand was one of the first countries to introduce dedicated whistleblowing legislation, to protect people who report their concerns of serious wrongdoing. That legislation, the Protected Disclosures Act 2000, has recently been replaced by the Protected Disclosures (Protection of Whistleblowers) Act 2022. The then Minister for the Public Service, Chris Hipkins, said “It is more people-focused and will make the rules easier to access, understand, and use”.
In a first of its kind, last month the Employment Relations Authority released a decision concluding that a former employee of the Bank of Zealand, Melissa Bowen, was unjustifiably dismissed because she was made redundant in retaliation for raising her concerns about a senior employee at BNZ.
Since raising her concerns with BNZ in 2016 and subsequently being made redundant, Bowen has tried to pursue her claims through various challenges in the ERA, the Employment Court and the Human Rights Tribunal. Through those decisions, various non-publication orders have been made, which continue to be upheld in the most recent decision.
What is known from the decision is that Bowen became concerned about the apparent conduct of a senior manager in commercial transactions, in particular in relation to two commercial arrangements. It is also known that the ERA confirmed that the concerns about the senior manager’s business conduct met the threshold of being alleged serious wrongdoing under the then applicable Protected Disclosures Act.
In the decision, the ERA found that BNZ had unjustifiably proposed to disestablish Bowen’s role in retaliation for her whistleblowing complaint; finding that the proposed restructure had no credible commercial basis. The BNZ was also found to have failed to act in good faith in respect of one of the claims, as the senior manager who was the subject of the complaint was “misleading and deceptive” in dealing with Bowen.
Bowen made a number of other claims which were unsuccessful, including bullying, threats of dismissal for breach of confidentiality, a second claim of retaliation, and BNZ breaching its whistleblowing policy.
In commenting on the ERA decision Bowen said “For a long time I wasn't able to talk about it, I wasn't allowed to and I wanted to protect the integrity of the investigation. Now I am able to talk about it, it's quite hard because it's been a very long campaign”.
New Zealand’s updated Protected Disclosures Act now extends the definition of “serious wrongdoing” to include “serious risk to the health and safety of any individual”, which could now include instances of bullying and harassment.
Protections are clarified to include confidentiality and no employer retaliation, unfavourable treatment and victimisation as well as immunity from civil, criminal, and disciplinary proceedings.
One of the agencies that serious wrong-doing can now be reported to is the Office of the Ombudsman, which at the end of June reported that there have been 203 protected disclosures and enquiries reported to the Office far this year. The Office said the figures this year are already 58% higher than the numbers recorded a year ago. "I applaud all those people who have come forward and reported wrongdoing or potential wrongdoing in their workplaces," said Chief Ombudsman Peter Boshier in a statement.
Bowen’s battle is not over yet. At both parties request, the ERA’s decision was only on the issue of liability (whether Bowen was successful or not in her claims). Any remedies that may be awarded in relation to the successful claims have yet to be determined. Also the issue of legal costs will also need to be resolved. That in itself is not clear. Bowen has been successful in some of claims, and unsuccessful in others.
It was reported by Julian Assange’s wife that he will take a dip in the sea, get some proper rest and try much-missed food as “a free man,” a day after the Australian landed home after making a plea deal with US prosecutors. Assange spent five years in a British prison fighting against extradition to the United States. Prior to that he sought refuge at Ecuador’s London embassy for nearly seven years.
Undoubtably, on the little that is known of the facts of Bowen’s whistleblowing complaint, it seems clear that she had serious concerns about certain transactions at BNZ and she tried to raise them with her employer. She lost her job over it. Her battle has been epic, taking on the deep pockets of an Australian owned bank. Unfortunately, her victory is likely to be hollow, given her legal costs in pursuing her claims. Read more....