Thinking of blowing the whistle? Here’s what you need to know

Legislation needs to change to encourage legitimate whistleblowing, and to protect and reward those who stand up for what is right.

Dr Benjamin Koh was the chief medical officer for the Commonwealth Bank’s insurance division. He told Four Corners and Fairfax Media that CommInsure denied payouts by putting pressure on doctors to change their opinions and by using outdated medical definitions. Subsequently, he was fired – for forwarding work emails to his personal account.

In another recent case, a human resources manager challenged her employer about workplace bullying and assault perpetrated by the managing director. The response was immediate retaliation that ultimately forced the whistleblower out of the workplace.

The 7-Eleven employee who blew the whistle on the systemic wage fraud at 7-Eleven franchises has never been identified. If he were, he’d have no protections under our current whistleblowing legislation.

These are three recent, concrete and typical examples of the lack of protections available to whistleblowers. They demonstrate the urgent need to reform the legal framework so that whistleblowers are unambiguously rewarded for speaking out against illegal or improper behaviour perpetrated within their workplace.

Protection under the Corporations Act

The Corporations Act only protects employees who blow the whistle on breaches of that Act. When an employee blows the whistle on illegal or improper behaviour that’s not covered by that Act, they have no protection and, consequently, are often punished.

We need to reform this framework to reward whistleblowers for doing the right thing by standing up and speaking out. If an employee blows the whistle on financial misconduct such as tax evasion, for example, which leads to the ATO recovering lost funds, the whistleblower should receive a percentage of any sum recovered. This would be one way to publicly reward them.

Whistleblowing can have a significant impact. But too often the whistleblower is punished and the wrongdoer gets off lightly or completely. The workplace bully is retained by the organisation, while the whistleblower is often forced out.

Protection under the Fair Work Act

The Fair Work Act offers some protection to whistleblowers. Under this Act, an employer can’t retaliate against or sack an employee for making a complaint about an aspect of their employment.

In terms of the whistleblowing cases I’ve dealt with – and they’ve included allegations of bribery, misleading the share market, workplace bullying and failing to comply with environmental regulations – we’ve tended to take proceedings under the Fair Work Act, rather than looking at the Corporations Law.

Generally these cases settle before trial. Usually, in such a way that gives the whistleblower some financial settlement and security while they look for other employment.

Advice to whistleblowers

The best thing you can do to minimise your risk is to get advice very early on. Whistleblowing is invariably stressful and difficult. It involves speaking up against an entrenched culture of illegality or impropriety and, when that happens, the people responsible for that culture will often retaliate.

A lawyer will help you navigate the threat of retaliation and minimise the damage to your reputation. As the legislation stands, we can’t eliminate all of the risk, but lawyers can help to pursue a strategy to reduce those risks.

Whistleblowing is a brave endeavour that too often results in the whistleblower being punished. What we need are legislative changes to make sure that whistleblowers are incentivised and rewarded for standing up for what is right.

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Josh Bornstein

Maurice Blackburn Melbourne
Josh Bornstein is a Principal Lawyer at Maurice Blackburn, based in Melbourne. He is the head of the firm’s national Employment Law department and is a member of the Maurice Blackburn Board. Rated by Doyle's Guide as Australia's leading employment lawyer for employees in 2018, ...

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