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and Fairfax Media that CommInsure denied payouts by putting pressure on doctors to change their opinions and by using outdated medical definitions.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.

TOPIC: Employment law
RELATED LEGAL SERVICES: Employment law

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Josh Bornstein

Maurice Blackburn Melbourne
Josh Bornstein is a Principal 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. Josh has 20 years’ experience as an employment lawyer, advising executive and managerial clients throughout Australia, as well as expatriate executives in Asia and Europe. He is available to consult with interstate and international clients by Skype. Josh is a skilled and strategic litigator with extensive experience regarding: employment contracts, restraint of trade, adverse action, unlawful discrimination, redundancy, disciplinary investigations, workplace bullying, sexual harassment and industrial disputation. Josh aims to resolve cases prior to litigation, and has negotiated numerous substantial out-of-court settlements. In all cases, he is vigilant about the protection of his client’s reputation. Josh is recognised as the top ranking Australian and Melbourne employment lawyer for employees in Doyle's Guide to the Australian Legal Profession 2013-2017 and is listed by the renown Expert Guides as among the best employment lawyers in the world. His legal achievements are extensive and include: Settled an unlawful discrimination class action against the Commonwealth for $100 million Represented the Victorian Government Ombudsman in a workplace investigation in 2015 Represented the incoming CEO of a listed property company in negotiating the terms of her employment contract Represented the Chief of Staff to a Victorian Government Minister whose workplace bullying complaint was investigated and upheld Obtained a seven-figure settlement for an unpaid bonus for a senior executive Obtained court orders preventing a hospital terminating the employment of a Nursing Unit Manager in 2015 Represented Essendon Football Club in ASADA's investigations during 2013-2014 Obtained a seven-figure settlement for a senior, long serving employee, after first taking urgent court action to prevent his employment being unlawfully terminated' Acted for the Fair Work Ombudsman in its prosecution of an employer who failed to offer a suitable position to an employee returning to work from maternity leave Confidentially resolved the cases of two female air traffic controllers in Federal Court proceedings who alleged prolonged sex discrimination and severe workplace bullying, and Josh is a highly-regarded and widely published legal commentator. He has contributed to academic and industry journals, and his opinion pieces on employment issues have been published in the mainstream media both nationally and internationally, including the Australian Financial Review, The Sydney Morning Herald, The Age, and The Guardian. His interest in disciplinary processes is informed by his role as Deputy Chair of a disciplinary tribunal in the horse racing industry. Memberships & accreditations Law Institute of Victoria Member Centre for Employment and Labour Relations Law Advisory Board Member (University of Melbourne) 2004 - ongoing Workplace Relations Section Executive Committee Member 2007-14 Maurice Blackburn Director 2004 - ongoing Australian Journal of Labour Law Editorial Committee Member 2012 - ongoing Racing Appeals and Disciplinary Board Deputy Chair 2013 - ongoing Australia Institute Director 2016 - ongoing Centre for Future Work Advisory Committee 2016 - ongoing Centre for Enployment and Labour Relations Law Advisory Board 2016 - ongoing Tzedek President 2012-14 Per Capita Director 2008-2014 State Trustees Director 2010-2012 Awards Doyle's Guide Melbourne Preeminent Employment Lawyer 2017 Expert Guides Best Employment Lawyers Worldwide 2017 Doyle's Guide Australian Market Leader Employment Lawyer 2016 Doyle's Guide Melbourne Preeminent Employment Lawyer 2016 Doyle's Guide Preeminent Employment Lawyer 2015 Doyle's Guide Market Leader Employment Lawyer 2014 Certificate of Service for Outstanding Contribution to the legal profession and Law Institute of Victoria 2014 Doyle's Guide Pre-eminent Employment Lawyer 2013 ...

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