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Whistleblowing can be a big risk for staff

The Dominion Post - Tuesday 4 June 2013

Marc Krieger was an unhappy whistleblower. He formerly worked at the Earthquake Commission (EQC) contacts centre and handled the investigation of complaints. He was also a member of the Official Information Act team.

Krieger had concerns about what was going on at the EQC. He tried to raise them directly with the minister responsible, Gerry Brownlee. His concerns were, not surprisingly, ignored by Brownlee's office. Krieger was then promptly summoned to a disciplinary meeting, which, he claims, was a result of reaching out to Brownlee. He received a written warning but ultimately elected to resign.

On leaving the EQC, Krieger continued his crusade by setting up a blog, EQC Truths, where he publicly described his experiences and concerns with the EQC.

However, things came to a head when a spreadsheet with details of some 83,000 claims was emailed accidentally to an outsider and posted online. The EQC quickly sought, and was granted, an injunction prohibiting publication of the information. On being named in more recent proceedings brought by the EQC, Krieger, who had up until this point been posting on his blog anonymously, chose to reveal his identity.

Krieger left the EQC before the spreadsheet got out. He denies leaking or uploading the information, although he did post a link to it on his blog. The EQC disagrees, however, and the solicitor-general is considering whether to bring contempt-of- court proceedings against Krieger for breaching the injunction.

Krieger claims his actions are a result of appalling incompetence at the EQC. In particular, he is concerned with the EQC's reluctance to release data relating to assessments of claims. The EQC says it is because of commercial concerns but Krieger alleges the real reason is that about 30 per cent of assessments done by the EQC have crucial errors. He was also critical of people getting jobs through what he claims is favouritism.

Staff have an obligation of trust, confidence and fidelity to their employers. They have an obligation to protect confidential information of their employers which continues even after their employment has ceased.

However, sometimes staff have a right to raise concerns about the conduct of their employer. This right is provided for and safeguarded in New Zealand by the Protected Disclosures Act 2000.

Protection for whistleblowers does not seem that strong in Britain, though. Despite having its own whistleblowing legislation in place, a recent study shows that three out of every four whistleblowers who raise concerns are ignored, and that 15 per cent were eventually sacked and many more bullied, ostracised or victimised.

A good example is Seth Freedman, who worked for ICIS Heren, one of the world's largest petrochemical market information providers. Concerned that traders at ICIS were manipulating prices in the wholesale gas market, worth more than £300 billion ($573 billion), he went to his superiors but little was done.

Freedman then passed on what he knew to the liberally inclined Guardian newspaper. This did not go down well with the company and, after a period of ostracism and victimisation, he was sacked.

Freedman claims he did nothing to breach the company's disclosure policies and is now bringing a claim for his unfair dismissal as a whistleblower. A review of the British legislation has also been ordered.

In New Zealand, the Protected Disclosures Act requires staff who have concerns to follow a prescribed process if they want the protection it affords. As the law now stands, going to the media is not a protected disclosure.

The concerns Krieger raised might not have been serious enough to fall under the Public Disclosures Act because it applies only in cases of serious wrongdoing. Regardless, it seems he did not avail himself of the whistleblowing protections despite any good intentions and merit in his claims.

All of this brings back memories of Neil Pugmire, who in 1993 was a psychiatric nurse at Lake Alice Hospital. At the time, Parliament was considering legislation that, in Pugmire's view, would lead to dangerous patients being released into the community.

In a letter to the health minister, Pugmire expressed concerns about some particularly dangerous patients at Lake Alice. The legislation was passed and one of the patients whom Pugmire had raised concerns about kidnapped and attempted to violate a boy, 11, after his release. After public outrage and calls for an independent inquiry, Pugmire made his letter to the minister available to then-opposition justice spokesman Phil Goff.

Pugmire was suspended by his employer for releasing confidential information.

The Employment Court, however, made an interim order reinstating Pugmire. As no further proceedings were brought, it seems the matter was resolved out of court.

Employers expect staff to behave with fidelity, loyalty and not to make public what is occurring within the workplace. That must be the general rule, with whistleblowing the exception.

Whistleblowing is a big risk for employees, even with the Public Disclosures Act. Workers therefore need to behave prudently and stay within the law.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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