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Ask A Specialist – Terminating A Whistleblower

Published June 08, 2018 (last updated November 19, 2020) -
Female Manager Consulting Male Employee Terminating Whistleblower

Question:  Someone at my mate’s business has started asking questions about some of the shortcuts they take in the business. Can he be fired for whistleblowing?

Answer: An employee who raises concerns or questions about unethical or illegal conduct within the scope of their employment is known as a whistleblower. In most cases, an employee who brings attention to these sorts of issues doesn’t wish to continue employment and will often resign of their own volition. However, in some circumstances, the employee does not resign, which presents an interesting dilemma for employers who may wish for that employee to no longer be part of the business. So, can you terminate an employee who is a whistleblower?

The short answer to this question is no. However, employers need to consider the issue on a case-by-case basis, as employees may have rights under various legislation.

Risks associated with terminating a whistleblower

  1. Personal Grievance Claim

An employee who believes that they have been unjustifiably dismissed and/or disadvantaged has the option to raise a personal grievance. A grievance could be raised for actions like making a complaint or inquiry about their work conditions, environment or employer. Terminating an employee, in the first instance, for speaking out could be in breach of the Employment Relations Act 2000 and could result in the employee lodging a costly and drawn out personal grievance claim against the Company.

  1. Effects on workplace culture

Regardless of the approach taken, as an employer, you need to consider the most appropriate options before acting, this may include seeking legal advice or speaking with your Workplace Relations Specialist. Careful planning will help reduce any unwanted negative effects such as the impact on other staff and workplace culture. Employees who witness poor treatment of colleagues may be less inclined to make reports of future poor behaviour or processes within the workplace.

  1. Other Obligations

Protected Disclosure Act 2000

Constitutional corporations (eg. Company, Trusts with Corporate Trustees) are covered by the Protected  Disclosure Act 2000. Before responding to any instance of whistleblowing, you need to consider the implications and protections under the Protected Disclosure Act. The Act facilitates the disclosure and investigation of matters of serious wrongdoing in or by an organisation and by protecting employees who, in accordance with this Act, make disclosures of information about serious wrongdoing in or by an organisation.

If an employee makes a protected disclosure under the Protected Disclosures Act 2000 their employer can’t take disciplinary (or other action) against them. If an employer does take action against an employee for making a protected disclosure, then the employee:

  • can raise a personal grievance.
  • may be able to bring an action under the Human Rights Act 1993; if the employer treats the employee worse because they (or their relative or friend etc) intend to make, have made or encouraged someone else to make a protected disclosure.

Reduce Risk From The Start

Prevention is always better than a solution. Fair, reasonable and safe practices and procedures within the workplace help to avoid these sorts of issues arising. Avoid whistleblowing from happening by remaining compliant from the start.  If you’re unsure of your compliance or policies and procedures regarding whistleblowers, speak with an Employsure Adviser today on 0800 568 012.

About Employsure

Employsure is one of New Zealand’s largest workplace relations advisers to small and medium businesses, with over 5,000 clients. We take the complexity out of workplace legislation to help small business employers protect their business and their people.

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