Protected Disclosures Act 2000

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Protected Disclosures Act 2000

The Protected Disclosures Act 2000 encourages employees to disclose and report information about serious wrongdoing in the workplace. This Act provides protection for these employees from criminal and legal retribution, and outlines the internal procedure to be followed when investigating the matter. Employees who report information or activities that are deemed illegal or incorrect in a workplace are often referred to as ‘whistle-blowers’. The Act applies to the public and private sector across New Zealand.

What is defined as serious wrongdoing?

Serious wrongdoing includes any unlawful activity, gross negligence by public officials, criminal offences or conduct that could potentially pose a risk to the public on a broader scale. It should not be confused with serious misconduct, which only affects an individual or group of people in the organisation.

The Act describes the following as serious wrongdoing:

  • unlawful, corrupt or irregular use of public money or resources
  • conduct that poses a serious risk to public health, safety and the environment
  • conduct that increases the risk of unauthorized intervention from a third-party to encourage a lawsuit
  • any kind of criminal offence
  • gross mismanagement and negligence from public officials

Who can make a protected disclosure?

The Protected Disclosures Act 2000 defines ‘employees’ as:

  • current employees who receive a regular wage or salary
  • former employees of the organisation
  • individual contractors who work for the organisation
  • homeworkers
  • secondary parties involved in managing the organisation
  • volunteers who work for the organisation

For the disclosure to be protected, the following requirements under the Act must be met:

  • the information must be about serious wrongdoing in the workplace
  • the employee must have a good reason to believe the information is true or likely to be true
  • the employee wants the serious wrongdoing to be investigated and is willing to cooperate

If the employee knows the allegations are false, acts in bad faith or the information is protected by legal professional privilege; the disclosure will not be protected.

Writing a protected disclosure policy

Public organisations are required by law to have their own internal procedures.

Private organisations are not legally required to have a protected disclosure policy. Although, having a policy does show transparency within the organisation and may give employees the comfort of knowing they can express their concerns without fear of retribution.

How to submit a protected disclosure

Employees should follow the internal procedure in the company handbook to report any cases of serious wrongdoing.

If the organisation does not have a protected disclosure policy and the person that manages the disclosures is the one being accused of serious wrongdoing, an employee can disclose the information to the head of the organisation.

If there is good reason to believe the employer or disclosure manager is involved in serious wrongdoing, the employee may report to the appropriate authorities to have the matter investigated. These authorities include the Ombudsman, Commissioner of Police, Director of the Serious Fraud Office, Solicitor-General or the head of every public sector agency.

What protection does the Act offer?

Many employees are afraid to disclose information about serious wrongdoing because they are afraid of losing their job, being sued by the company or discriminated against. The Act clearly states that no civil, criminal or disciplinary action can be taken against whistle blowers or potential whistle blowers for making a protected disclosure.

If an employee does face any form of retaliation from the organisation, they can submit a personal grievance claim under the Employment Relations Act. Employers who discriminate or mistreat employees that have disclosed information about serious wrongdoing could face serious legal consequences.

How does the Act protect an employee’s privacy?

After making a protected disclosure, an employee’s personal information is kept confidential according to the terms of the Act unless the employee consents to the disclosure.

There are exceptions to the confidentiality rule in the Act, which means certain information can be used if it:

  • helps the investigation move forward and uncover the truth behind the allegations
  • reduces the risk of personal injury or harm to public health, safety and the environment
  • avoids potential bias and complies with the rules of natural justice

For advice on how to comply with the Protect Disclosure Act 2000 in your workplace, contact Employsure on 0800 568 012.

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