Whistleblowing at work: can you lose your job for reporting misconduct?

Suppose you find out that something unethical, or even illegal, is happening in your workplace. What should you do? Who should you tell? If you look for advice, you'll often find the same phrase: "Document everything."

Blowing the whistle on unethical or unlawful conduct takes courage. But it can also create legal risks. Unfortunately, whistleblowers must consider how to protect themselves.

The consequences can be serious. In some cases, not even lawyers are safe. 

The Witness K matter illustrates that individuals who disclose alleged governmental wrongdoing may face prosecution. Witness K was prosecuted after revealing information about Australia's alleged bugging of Timor-Leste government offices during treaty negotiations, and his lawyer, Bernard Collaery, was also prosecuted. David McBride, who gave evidence of war crimes to journalists, was sentenced to five years in jail.

Can you face retaliation for blowing the whistle? What kind of disclosures are protected by law? Are there rules you must follow to make sure you are not penalised for doing the right thing?

Most of us don't deal in official secrets or classified government information. When it comes to wrongdoing in the private sector, it's more likely to be a matter of financial misconduct or a company's failure to comply with regulations.

Whistleblower protections do exist in Australian law. For disclosures about misconduct in the private sector, many of the protections are found in the Corporations Act. But they’re limited. They only apply to certain people disclosing certain kinds of information to certain recipients. 

So, if you're thinking of blowing the whistle, or you've already done so, it is important to seek legal advice and representation as early as possible.

What is protected whistleblowing?

The Corporations Act provides some protections for whistleblowers if the disclosure meets certain requirements. These protections include:

• Protection from victimisation: your employer (or others) must not threaten, harass, discriminate against, demote, or disadvantage you because you made a disclosure.
• Compensation rights: you may be able to seek a court order for compensation if you suffer loss or damage.
• Protection from legal liability: you cannot be sued, prosecuted or disciplined simply for making a qualifying disclosure.
• Qualified privilege: what you disclose is protected against defamation claims. You can’t be sued for damaging people’s reputation by making a qualifying disclosure.

However, not everyone can rely on whistleblower protections. To qualify, you must be connected to the organisation you are reporting. What constitutes a valid connection is specified in the Corporations Act.

The law also specifies who is a valid recipient of a disclosure. That means that you can't just tell anyone about the misconduct you suspect. Who constitutes an eligible recipient is also specified in the Corporations Act: they’re mostly regulatory agencies, or people with official responsibilities, like certain senior managers, auditors and lawyers.

In some circumstances, disclosures can also be made to journalists or MPs, but only if strict rules around “public interest” or “emergency” disclosures are met.

These protections are important, but there are complex limitations on who can access them. That is why legal advice can be key to making sure your disclosure is protected.

What kind of information can be disclosed?

Not every workplace problem is protected under the Corporations Act. To qualify, your disclosure must relate to:

• Misconduct or an improper state of affairs within a company
• Breaches of corporate, financial or banking laws
• Offences punishable by at least 12 months’ imprisonment
• Conduct that poses a danger to the public or financial system

By contrast, personal work-related grievances (such as disputes about promotions, pay, or interpersonal conflict) generally do not qualify.

However, there may be other legal protections for making complaints or asking questions on these topics. The Public Interest Disclosures Act provides protection for public sector employees, and Fair Work Act provides protections against retaliation for making a complaint or exercising a workplace right. An experienced workplace lawyer at Maurice Blackburn can help you understand which legal framework best applies to your situation.

It’s important to seek legal advice. You may think you're a whistleblower, but not all complaints are legally protected whistleblower disclosures. If you want to make a disclosure, you should make sure you do it in a way that is protected. If you believe you're facing retaliation for blowing the whistle, check to see if you are protected. And even if you do not qualify under the Corporations Act, our team of expert workplace lawyers might be able to identify other protections available to you.

How we can help

These areas of law are complex, and in many cases they overlap. But they exist to protect your rights. If you're unsure about your next steps, seek help and advice. Our team of Australia’s leading workplace lawyers can discuss your rights and options, and help you plan your next steps. Contact us today.

This article is for general informational purposes only and does not constitute legal advice.