Whistleblower Legislation is Changing

Whistleblower Legislation

Whistleblower legislation in New Zealand is changing affecting all workplaces. The Protected Disclosures (Protection of Whistleblowers) Act 2022 replaces the Protected Disclosures Act 2000 from 1 July 2022. It continues the 2000 Act’s purpose – to facilitate the disclosure and investigation of serious wrongdoing in the workplace (whistleblowing) and provide protection for employees/workers who report concerns.

The 2022 Act:

  • Extends the definition of serious wrongdoing to include behaviour that poses a serious risk to the health and safety of any individual.
  • Enables disclosers to report serious wrongdoing to an appropriate authority at any time, rather than first having to go to their employer.
  • Strengthens protections for disclosers by specifying what a receiver of a disclosure should do.
  • It clarifies the potential forms of adverse conduct disclosers may face.

What is Serious Wrongdoing in the Whistleblower Legislation?

Types of Serious Wrongdoing include:

  • An unlawful, corrupt or irregular use of public funds or public resources.
  • A serious risk to public health, or public safety, or the health or safety of any individual, or to the environment.
  • A serious risk to the maintenance of the law including the prevention, investigation and detection of offences or the right to a fair trial.
  • An offence.
  • Oppressive, unlawfully discriminatory, or grossly negligent or that is gross mismanagement by a public sector employee or a person performing a function or duty or exercising a power on behalf of a public sector organisation or the Government.

Serious wrongdoing disclosures can come from both public and private sector workplaces.

How are employees protected?

No civil, criminal, or disciplinary proceedings can be taken against the employee for making a protected disclosure. Or for referring one to an appropriate authority.

If the employee suffers retaliatory action from their employer for making a protected disclosure, they can raise a personal grievance under the Employment Relations Act. And / or possibly take action under the Human Rights Act.

What must Employers do if they are a Receiver of a Protective Disclosure?

The employer should acknowledge to the discloser the receipt of the disclosure, consider whether it warrants investigation, and deal with the matter as set out below. This all needs to be completed within 20 days under the Act:

  • Investigating the disclosure.
  • Addressing any serious wrongdoing by acting or recommending action.
  • Referring the disclosure to an (or another) appropriate authority.
  • No action is required.

The employer should then inform the discloser about what they have done or are doing to deal with the matter. If the employer is unable to complete these actions within 20 working days, they should begin the process and inform the discloser how long it may take.

Do Employers Need to Setup Processes for the Whistleblower Legislation?

In the private sector processes are not required under the Act. Processes are a good idea because employees know how to raise an issue in a timely manner.

For HR advice Whistleblower Legislation and setting up Whistleblower and/or Inappropriate Behaviour Policies and Procedures, get in touch.