HR professionals are on the frontlines when it comes to whistleblowing, and there are four key elements to consider when it comes to successful whistleblowing policies, according to Herbert Smith Freehills’ Shivchand Jhinku, Lisa Soo and Charlotte Johnstone-Burt
Australia’s new corporate whistleblowing regime came into effect on 1 July 2019, and has been described as the new global “high watermark” and “gold standard” when it comes to protections for those who “speak up” in the private sector.
Prompted by a parliamentary inquiry into corporate whistleblower protections which identified a number of deficiencies in the previous legislative protections, the new regime introduces significant changes to the Corporations Act 2001 (Cth). Broader categories of disclosable conduct and strengthened confidentiality and non-victimisation protections have been coupled with significantly increased penalties for contraventions, both for corporations and individuals.
This has led organisations to grapple with several questions: how do we know when the strict protections will apply to a disclosure, and who will make this decision? When the stakes are this high, how can we ensure that everyone in the business knows about our obligations and how to manage them? What if a whistleblower disclosure is entangled with other ‘garden variety’ workplace complaints, and what if there are performance or conduct concerns relating to someone who has made a protected disclosure?
HR practitioners are finding themselves on the frontline when it comes to managing these issues. Now that the legislation is in full swing, what should people in these positions be thinking about, both from a legal and practical perspective?
1. ‘Triaging’ processes
The whistleblowing legislation is intended to capture serious and/or systemic concerns in an organisation. The scope specifically excludes ‘personal work-related grievances’. These are complaints which relate solely to the whistleblower’s employment or engagement, and do not have significant implications for the organisation.
Given the significant protections which apply to ‘protected disclosures’ under the legislation, organisations need to develop an appropriate internal framework to effectively “triage” whistleblowing complaints from more personal work-related grievances, which do not attract the same obligations.
“There should be sufficient detail in an organisation’s policy documents to ensure that a whistleblower knows that the organisation is free to raise concerns that arise in the ordinary course of the whistleblower’s employment, and this will not be victimisation”
It may not be immediately clear whether a concern relates solely to the whistleblower, or whether it has implications for the organisation more broadly.
For example, a complaint which involves alleged bullying might be considered to be a personal work-related grievance at first blush. However, this characterisation might change should it be uncovered in course of investigations that the person accused of bullying has actually bullied several other people in the organisation. The issue might therefore be described as ‘systemic’. Similarly, if it is discovered in the course of investigating the bullying complaint that the reason for the bullying was because the victim has made a protected disclosure (or might do so), this puts the complaint squarely within the scope of the legislation.
Considering the risks involved with making a wrong assessment, some organisations choose to adopt a more inclusive approach, treating all complaints as whistleblowing reports in accordance with the whistleblowing policy unless and until they can clearly be excluded. However, this carries the risk that the channels preserved for whistleblowing will be ‘clogged’ by matters which are more ‘run-of-the-mill’.
Other organisations therefore choose to make clear from the outset that whistleblowing channels should be reserved for serious, systemic issues only, and very specifically refer employees with ‘vanilla’ employment-related grievances to other communication channels from the outset (for example, by having a separate policy for complaints and grievances). The risk with this approach is that a protected disclosure can ‘fall through the cracks’ and not receive the required treatment with regard to the confidentiality and victimisation protections enshrined in the legislation.
2. Disciplinary issues
The victimisation provisions of the new regime require organisations to take reasonable steps to ensure that someone who has made a protected disclosure is not subject to detrimental conduct (or threats of detrimental conduct) on the basis that they have made, or propose to make, a protected disclosure.
Managing this obligation may become difficult where, in the course of dealing with a whistleblowing complaint, there are separate performance or conduct concerns in relation to the whistleblower. Questions arise over what to do with these separate concerns. Should they be put ‘on hold’ until the whistleblowing complaint is closed? Is it better for the same person to have oversight of both processes, or should the processes be kept completely separate?
HR practitioners should tread carefully in such situations, and ensure there is clear communication with respect to the motivations for any disciplinary action taken against a whistleblower in relation to separate performance or conduct issues.
“HR practitioners have a broader role in encouraging a ‘speak up’ culture within the organisation”
To support this course of action, there should be sufficient detail in an organisation’s policy documents to ensure that a whistleblower knows that the organisation is free to raise concerns that arise in the ordinary course of the whistleblower’s employment, and this will not be victimisation.
3. Training and raising awareness
Robust policies and procedures will mean little if staff are not made aware of them. This has been acknowledged by ASIC in its most recent draft Regulatory Guide on whistleblower policies, which is currently subject to public consultation.
HR should ensure that all staff are aware of the organisation’s policy in relation to whistleblowing, and the channels through which they can make a disclosure. In addition, staff with specific responsibilities under a policy need to be provided with specialised training, so that they understand their legal obligations and the consequences of not handling a whistleblowing complaint correctly.
4. Improving culture
It is important to bear in mind that beyond simply ensuring that an organisation’s policy and procedures are compliant with its legal obligations, HR practitioners have a broader role in encouraging a ‘speak up’ culture within the organisation.
The whistleblowing legislation was introduced in the wake of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, with the aim of encouraging transparency within organisations. People in positions of authority in organisations are therefore expected to foster a corporate culture which is not only compliant, but positive and open.
Having a ‘speak up’ culture means that staff understand how to identify misconduct, and feel supported in bringing it to the attention of leadership. HR practitioners should therefore be taking a broader view of the whistleblowing policy and procedures as important tools in ensuring good corporate governance and developing a healthy organisational culture.