Protection available to whistleblower
Trump withheld more than US$250 million (NZ$296 million) in aid to Ukraine immediately prior to the incident. The transcript of the call has now been released and a second whistleblower has claimed to have first-hand knowledge of the events.
The whistleblower is unlikely to be outed given the protections in place in the US for people who raise legitimate matters of public concern. In New Zealand, similar protections apply to those who come forward with information about serious wrongdoing relating to public or private agencies.
The background to New Zealand’s legislation dates back to 1993, when Neil Pugmire, a psychiatric nurse at Lake Alice Hospital, became concerned about a new mental health law that would see dangerous patients released. Pugmire wrote a letter to then Minister of Health, Bill Birch, but nothing came of his letter.
A few months later, a 2-year-old girl was violated by a patient who was released under the legislation. Phil Goff, justice spokesman for the Opposition at the time, called for an inquiry. Pugmire then sent his letter to Goff, who shared it with the media.
Pugmire was suspended by his employer for breaching patient confidentiality, pending the outcome of an investigation. He challenged this suspension in the Employment Court. He was reinstated the morning of the hearing and the matter was subsequently settled out of court.
Pugmire’s case, and the national attention that followed his whistleblowing, inspired a public dialogue around the need to protect whistleblowers which culminated in the passing of the Protected Disclosures Act in 2000.
The Protected Disclosures Act provides a regulatory framework to protect an employee who makes a disclosure not only from any criminal or civil lawsuit, but also from retaliation from their employer.
To be protected under the Act, a disclosure must relate to serious wrongdoing in the workplace. Serious wrongdoing includes unlawful or corrupt use of public funds, conduct that poses a serious risk to public health, safety or the environment, any criminal offence, or gross negligence or mismanagement by public officials.
Only employees of an organisation can make a protected disclosure, but the Act extends the definition of employee in these circumstances to include former employees, contractors, secondees and volunteers.
Employees will not be protected in respect of making a disclosure if they know the allegation is, or is likely to be, false, or if it is made in bad faith.
The process for making a disclosure depends on the policies in each organisation. Public sector agencies are required to have appropriate policies dealing with this, but where an organisation does not, an employee can make a protected disclosure directly to the head of their organisation.
Where the head of the organisation is implicated, or where an employee has made a disclosure and no action has occurred within 20 workings days, employees can make a disclosure to ‘‘appropriate authorities’’, which are defined in the Act.
The appropriate authorities include the Ombudsman, Commissioner of Police, Director of the Serious Fraud Office and Inspector-General of Intelligence and Security among others.
The Protected Disclosures Act is an important mechanism to ensure accountability and transparency, both in the public and private sectors. Where an employee seeks protection under the law for shining a light on wrongdoing, they need to ensure that they follow the correct procedure.
Susan Hornsby-Geluk is a partner at Dundas Street Employment Lawyers
The Protected Disclosures Act provides a regulatory framework to protect an employee.