The Whistleblower legislation was introduced in 2019 for the protection of any person who has reasonable grounds to suspect that they have information indicating that a company or its officer or employee has engaged in certain conduct that breaches specific acts of parliament that apply to the entity or its officers.
Sometimes, people experiencing an employment dispute or a personal work-related grievance may feel the need to make a disclosure in the mistaken belief that their action in ‘blowing the whistle’ on their employer or work colleague is justified because they assume it is justified legally if the accusation is true.
That assumption is dangerous!
What is actually true is that any report of a personal work-related grievance may not be covered under the whistleblower protections after all.
1317AADA is the appropriate section of the legislation dealing with a personal work‑related grievance and this makes it clear that protections do not apply to a disclosure of information by an individual (who is called the discloser) to the extent that the information disclosed:
(a) concerns a personal work‑related grievance of the discloser; and
(b) does not concern a contravention that involves detriment caused to the discloser or a threat made to the discloser.
This does not mean that you cannot disclose to your lawyer a personal work‑related grievance that may qualify for protection under the legislation (ss1317AA(3).
It comes down to what the information disclosed is. It is only a personal work‑related grievance of the discloser if:
(a) the information concerns a grievance about any matter in relation to the discloser’s employment, or former employment, having (or tending to have) implications for the discloser personally; and
(b) the information:
(i) does not have significant implications for the regulated entity to which it relates, or another regulated entity, that do not relate to the discloser; and
(ii) does not concern conduct, or alleged conduct, referred to in paragraph 1317AA(5)(c), (d), (e) or (f).
If you are a current or former officer, employee, or contractor of a company or organisation who has an employment dispute or work related grievance with the company or organisation, you may wish to report misconduct by the company or organisation about that work-related dispute.
However, the whistleblower protections do not cover a report of misconduct solely about your personal work-related grievance, which will generally include:
- an interpersonal conflict with another employee
- a decision about your employment, transfer, or promotion
- a decision about the terms and conditions of your employment
- a decision to suspend or terminate your employment or otherwise discipline you.
Instead, you may have rights and protections under employment or contract law.
Report of significant, wider concerns about employment dispute may be covered
Even if you have a personal work-related grievance, you may still be able to access the whistleblower protections for a report about your treatment.
However, this is only if the report also raises significant implications for the company or organisation.
For example, if the company’s or organisation’s treatment of you breaks employment or other laws or suggests systemic misconduct beyond your own circumstances.
In addition, you can access the whistleblower protections if you suffer or are threatened with detriment for reporting your own circumstances or even threatened about making a report to your lawyer.
Similarly, you may also be able to access whistleblower protections if you make a report about other misconduct you have observed or been affected by.
We encourage you to seek your own legal advice about whether you may be covered by the whistleblower protections and how you can resolve your personal work-related grievance.
Where to find more information
- RG 103 Confidentiality and release of information
- RG 270 Whistleblower policies
- INFO 151 ASIC’s approach to enforcement
- INFO 153 How ASIC deals with reports of misconduct
- INFO 172 Cooperating with ASIC
- INFO 239 How ASIC handles whistleblower reports
Read the whistleblower provisions of the Corporations Act (especially Part 9.4AAA) on the Federal Register of Legislation.
Bruce Havilah is a Not-For-Profit Director of a National Sporting organisation and is an Associate Member of the Governance Institute. He works in the areas of business and commercial law and litigation and Governance.
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