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Blowing a whistle may harm everyone

8 June 2016

Most employees are overwhelmingly loyal, objective and trustworthy and do not leak information.

When employees discover questionable conduct, which they think is wrong or even illegal, what should they do?

Daniel Donovan worked as a technology employee with Volkswagen (VW) in the United States and was responsible for electronic information management in injury and product liability cases.

He was a whistleblower. Donovan alleged VW deleted documents and obstructed justice after the United States Environmental Protection Agency (EPA) accused the company of cheating on emissions tests. Donovan blew the whistle on the company. He was fired.

Donovan said that he refused to participate in deletions and reported them to a supervisor. Deletions continued three days after the allegations had been made, despite a hold order from the Justice Department.

VW has admitted that it programmed about 600,000 diesel powered cars in the United States to turn on pollution controls during EPA treadmill tests. It programmed them to turn off when the cars were on the road.

The EPA alleges that the cars omitted as much as 40 times the allowable amount of nitrogen oxide. These raised levels can cause respiratory problems.

Not surprisingly, Donovan says that he was wrongfully dismissed in December last year after refusing to participate in the deletions and reporting them to his supervisor.

The employer says his departure from the company was not related to the diesel emissions issue and believed “his claim of wrongful termination is without merit”.

Until 2000, New Zealand had no law dealing with this issue. Readers might remember the 1994 case of Neil Pugmire which went to the Employment Court and involved the release of a dangerous person from Lake Alice Hospital.

Pugmire expressed concerns to management about the release of psychiatric patients who he considered dangerous, however these concerns went unheeded by management.

One patient later kidnapped and attempted to sexually assault a young boy, and assaulted two other children. After his concerns were still not taken seriously, he went public, and disclosed confidential information to an opposition Member of Parliament.

Pugmire received considerable sympathy for releasing this information, but his employer was less sympathetic, suspending and then later dismissing him.

Pugmire challenged this decision and took proceedings to the Employment Court. Pugmire was reinstated to his position on an interim basis, but the issue was never fully heard by the Court.

Despite this, Pugmire’s determination made waves, and the legislation that followed these events provides much more clarity.

The Protected Disclosures Act 2000 encourages people to report serious wrongdoing in their workplace by providing them with protection. It applies to the public and private sector.

Before acting, people need to be clear about what they are able to do. For example a serious wrongdoing is just that. It includes unlawful or irregular use of public resources and conduct that poses a serious risk to the public health safety or the maintenance of law.

However even with this Act, employees like Pugmire remain vulnerable.

Disclosures can be made to only a very limited number of people. Generally speaking, protected disclosures must be made in accordance with an organisation’s internal procedures for dealing with information about serious wrongdoing.

If no internal procedures exist, disclosures can be made to the head of your organisation. In certain circumstances you can make the disclosure to other specified people such as the Ombudsman or the commissioner of Police.

Disclosures to media and politicians, however, are definitely excluded. Had Pugmire made the same disclosure today, he would probably have no protection under the Act.

The Act does not seek to protect those who seek to trigger change through political force, no matter what the merit of that claim might be.

Do readers agree with this containment?

The Act carefully balances the organisations need to rely on loyal staff with the wider public interest. All organisations need to be able to rely on trustworthy staff. Only in rare cases can staff “blow the whistle.”

Make sure you familiarise yourself with the rules relating to whistleblowing and protected disclosures before you act. Tread carefully but firmly.

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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