When preparing policy, how should HR differentiate between whistleblowing and reporting a personal grievance?
by Aaron Goonrey, Partner, Lander & Rogers
What is the difference between a disclosure under the whistleblower laws and a personal grievance?
Many organisations have encouraged 'speak up' cultures within the workplace - the ability for a worker to raise issues and concerns without the threat of retaliation.
Robust organisations welcome the opportunity to deal with aberrant issues at the earliest opportunity rather than allowing the problem to fester and become out of control.
In certain instances, the worker may be considered a whistleblower.
The Corporations Act 2001 (Cth) was amended to expand the protections for whistleblowers, known as a "discloser", including that certain organisations are required to have a whistleblower policy.
A whistleblower policy can take the form of an 'ethics', 'speak up', 'conduct' policy or framework and some state that disclosers can report any type of alleged misconduct.
The whistleblower protections under the Corporations Act do not apply to a personal work-related grievance. Examples include:
- an interpersonal conflict between employees;
- a decision relating to a discloser's engagement, transfer or promotion
- a decision relating to the terms and conditions of a discloser's engagement, or
- a decision to discipline, suspend or terminate the discloser's engagement.
Despite these examples, if a discloser had previously reported some type of whistleblower disclosure, then a report about those preceding circumstances may be covered by the whistleblower protections.
Business leaders drafting policy must ensure that personal, work-related grievances are protected disclosures if they are made in specific circumstances, as opposed to 'any' circumstances, encompassing:
- the harmful treatment of a discloser as a consequence of having made a whistleblower disclosure; and
- if it has significant implications for the organisation and the information relates to types of conduct prescribed by the Corporations Act.
