Acting in good faith and in the public interest: Protecting whistleblowers

Where an employer decides to refuse to carry out an investigation, the employer shall provide reasons in writing to the employee within 15 days of the decision. If the employee is not satisfied with the refusal to carry out the investigation, he/she may make a protected disclosure to any other person to whom a disclosure may be made under the Act.

Any provision of an agreement shall be void and of no effect if it precluded an employee from making a protected disclosure or requires an employee to: (i) agree not to make a disclosure during or after his/her period of employment; (ii) refrain from instituting any proceedings pursuant to the Act; or (iii) withdraw or abandon any disclosure made or proceedings instituted.

Part V – Oversight functions

The Minister is required to designate an individual or entity as the Designated Authority responsible for monitoring compliance with the Act. The Designated Authority may adopt whatever procedure it considers appropriate to the circumstances of a particular case, and may obtain any information from such person and in such manner and make such enquiries as it thinks fit.

The Designated Authority may at any time require a person, who in its opinion is able to give any assistance in relation to an investigation of any disclosure, to furnish information and produce any document in the possession or under the control of that person. It may also summon and examine on oath any person who has made representation to the Authority or any other person who in the opinion of the Designated Authority is able to furnish information relating to the investigation. The Designated Authority shall have the same powers as a Judge of the High Court in respect of the attendance and examination of witnesses and the production of documents.

After conducting an investigation, the Designated Authority shall inform the concerned employer in writing of the results of the investigations and any recommendations made. Where the employer is a public authority, the concerned Minister is informed. If it is found that there is evidence of a breach of duty, misconduct or criminal offence on the part of an officer or member of a public body, the Authority shall refer the matter to the person or persons competent to take disciplinary or other actions against that officer or member.

Other functions of the Designated Authority include: (a) publish procedural guidelines regarding making, receiving, and investigating disclosures, as it considers appropriate;

(b) provide assistance to any person seeking to make a disclosure, and to any person who is a designated officer, employer or other person;

(c) plan, implement and monitor public awareness programmes; and

(d) within six months of the close of the year, transmit to the Minister a report of the activities of the Authority during the preceding year, a copy of which shall be tabled in the National Assembly.

Part VI – Miscellaneous

A person commits an offence, if he/she:

(a) prevents, restrains or restricts any employee from making a protected disclosure;

(b) intimidates any employee who has made or intends to make a protected disclosure;

(c) induces any person by threats, promises or otherwise contravene the Act;

(d) being an employer, (i) subjects an employee to occupational detriment as a consequence of the employee making a protected disclosure; or (ii) refuses, in bad faith, to receive a disclosure and to carry out an investigation, or ceases an investigation in relation to a disclosure;

(e) being an employee, purports to make a disclosure knowing that it contains a statement that is false, misleading or reckless;

(f) aids, abets, procures or conspires with any other person to contravene the Act;

(g) without reasonable cause, fails to comply with a requirement imposed by the Designated Authority.

A person who commits an offence under (a) to (f) is liable upon summary conviction to a fine of $2 million and to imprisonment for a term of two years, or upon conviction on indictment to a fine of $3 million and to imprisonment for a term of five years. In the case of (g), upon summary conviction, the person is liable to a fine of $250,000 and imprisonment for a term of three months.

Every person receiving, investigating or otherwise dealing with a disclosure shall regard and deal with as secret and confidential: (i) the identity of the employee making the disclosure and any disclosure made; and (ii) any statement given, or document or information provided to the person carrying out the investigation. A person who contravenes any of these two requirements is liable on summary conviction to a fine of $2 million and to imprisonment for a term of two years.

Finally, the Minister may make regulations, subject to affirmative resolution of the National Assembly, for carrying out the purposes of the Act, including procedures to be applied in making, receiving and investigating disclosures; the forms to be used; and provisions for the operations of the Designated Authority.