There are times when an employee may witness an incident at their workplace that may go beyond acceptable ethical conduct. As a result, it may be appropriate for that employee to report the incident to the relevant authorities. While this can put your employee in a precarious position, given they might potentially risk losing their job, you can alleviate these fears by enforcing a well-defined whistleblower policy. As explained in this article, a whistleblower policy should ensure employees can comfortably reveal information about an act they feel to be improper without jeopardising their employment.
What Protections Exist for Whistleblowers?
To encourage employees to come forward with their concerns about their workplace, the Corporations Act 2001 (Cth) (‘the Act’) gives certain people rights and protections as whistleblowers.
Who Does it Protect?
To enjoy the rights and protections under the Act, a whistleblower disclosing information about your company can be in any of the following current or former positions in your company:
- an employee;
- an officer, such as a director or company secretary;
- a contractor, including unpaid volunteers;
- an associate;
- a trustee or investment manager; and
- a spouse, relative or dependant of any of the people referred to above.
Notably, while the whistleblower must hold or have held a position in any of the above roles, they can raise their concerns anonymously.
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What Can a Whistleblower Disclose?
There are further protections for those who have reasonable grounds to believe that reporting their concerns:
- to a journalist or parliamentarian would be in the public interest; and
- poses a substantial and imminent danger to the health or safety of people or the natural environment.
In this sense, protection is mainly limited to reporting breaches of the Act and Australian Securities and Investments Commission Act 2001 (Cth). Protection from disclosure will not generally extend to other instances of alleged misconduct that may warrant disclosure.
Additionally, a whistleblower can make their disclosure to:
- a director or senior officer of your company;
- an auditor;
- an actuary of the company;
- a person your company has authorised to receive whistleblower disclosure;
- the Australian Securities and Investments Commission (ASIC); or
- a lawyer.
How is a Whistleblower Protected?
If an employee is protected by the Act, it is against the law for you to:
- coerce employees to tip off the identity of the whistleblower;
- cause detriment, harm or threaten the whistleblower as a result of reporting the misconduct, such as by threatening to dismiss or demote them; and
- take legal action against the person for reporting the misconduct, such as enforcing a non-disclosure clause in an employment contract.
However, you should note that the law will not grant a whistleblower immunity if they were involved in the misconduct they reported.
What Makes a Robust Whistleblower Policy?
A whistleblower policy should assure employees that their role within your business will not be adversely affected by their potential disclosure. A whistleblower policy should preferably consist of the following features:
- a statement of commitment that management should firmly establish they will abide by the policy in force;
- assign staffing and financial resources to its implementation;
- provide specialist whistleblower management training;
- make a comprehensive risk evaluation of all company stakeholders;
- define what is reportable behaviour under the policy;
- a guarantee that staff can receive protection for reporting wrongdoing that may strictly fall within the policy;
- assure the anonymity of the disclosing employee and reporting pathways available to them; and
- a regular review mechanism that allows for continuous improvement.
Other options exist for employers wanting to implement an internal whistleblower policy. If looking for a pre-made policy, there also exists a suite of platforms that enable employees to anonymously lodge their claims.
Continue reading this article below the formKey Takeaways
By affirming your employees’ rights to voice concerns about business practices, a whistleblower policy is an important step to bolster your employees’ confidence and strengthen workplace ethics. This can lead to a far more healthy company culture overall. It also helps ensure that any questionable actions can be swiftly dealt with, significantly enhancing business integrity.
If you need help drafting a whistleblower policy, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
It is illegal to fire, harass or discriminate against a whistleblower because you think they made a disclosure about your company’s misconduct.
To enjoy the rights and protections under the Corporations Act 2001, a whistleblower disclosing information about your company can be a current or former employee, officer, contractor, associate, trustee or investment manager and a spouse or relative of any of these people.
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