The Employment Relations Authority has temporarily reinstated a call-centre worker for a taxi company who was let go for serious misconduct.
Earlier this year the company, Communication and Training Service Limited, fired the worker – who has name suppression – for allegedly blackmailing management, accessing IT equipment they were not entitled to and because the company had lost trust and confidence in them.
However, the worker claims they were fired in retaliation for blowing the whistle on “favouritism, nepotism and corruption”.
They said they were asked to direct jobs to certain preferred drivers.
In a determination released by Sarah Blick, she said there was an arguable case the dismissal was unjustified and so directed Communication and Training Service to reinstate them until the allegations on both sides could be tested and decided on.
That is likely to happen in the first half of 2024, with a determination to follow.
The Protected Disclosures Act, which seeks to protect those who expose wrongdoing in their own workplace, came into effect last year. It replaced the previous piece of law, which was 22 years old.
“Cynically if an individual saw that complaints may potentially be made against them by their manager, they could in theory raise a protected disclosure to say “hey, my manager is bullying me … I feel like my health and safety is at risk, you have to look into this.”
Rosemary Wooders, Bell Gully
Bell Gully partner Rosemary Wooders, who specialises in employment law, said the changes included an extension to the definition of what “serious wrongdoing” meant.
“The definition now expressly includes behaviour that is a serious risk to the health and safety of any individual, which could include instances of sexual harassment and bullying, and I think looking at it from the employment relations perspective, why we find it interesting, is it does broaden the scope and ambit of an employee within an organisation to raise a protected disclosure.”
She does not have any extra insight into the call-centre case, only having read the determination released by the Employment Relations Authority, but said there were tests that would have to be met to prove the worker was actually making a protected disclosure.
“The individual needs to believe on reasonable grounds that there is or has been serious wrongdoing … My high level initial view would be we’re dealing here with favouritism in the workplace or nepotism potentially, and whether that means serious wrongdoing, I would struggle to see that it does. But of course, the individual may believe on reasonable grounds so that that would protect them.
“But the other two limbs that an individual needs to meet is that the information needs to be disclosed in accordance with the Protected Disclosures Act, so there are a number of steps to go through … and then importantly, it cannot be in bad faith, and I wonder if this is another element that will also be looked into as well.”
This is because the determination outlines an allegation by the company that the worker said they would not disclose the favouritism claims, if they got a pay rise.
The worker denied that this happened.
The evidence from the worker and the company are outlined in the determination, but have not been proven – this is something that will happen at the substantive hearing.
Wooders said given the expanded definition of serious wrongdoing, employees could use the new legislation, or even the threat of it, as a “shield”.
“Cynically if an individual saw that complaints may potentially be made against them by their manager, they could in theory raise a protected disclosure to say ‘hey, my manager is bullying me … I feel like my health and safety is at risk, you have to look into this.
“Then if the manager subsequently turned around and raised complaints about that person … there could be an issue with the person who made the disclosure saying, ‘well, now you’re victimising me’, so it gives rise to that kind of issue.”
She expected the Protected Disclosures Act would be leaned on more as awareness of it grew, adding employers needed to make sure they were on top of their obligations.
“For the medium to larger size, I imagine they’ve got their legal advisors they go to and they will, in all likelihood, have some form of policy in place, or they will have access to resources to be able to work through a complaint if it arises.
“But you can imagine those smaller employers who just don’t have the luxury of being able to necessarily pull upon these resources, having to figure out, what do I do? And they may not necessarily know that there is a process that you have to go through to actually deal with a protected disclosure.”
“It has a huge chilling effect on whistleblowing. That’s really bad for our democracy and I see that firsthand. I know that these cases are discouraging people from speaking up.”
Kieran Pender, Australia Human Rights Law Centre
Tristam Price is an employment law researcher, advocate and former whistleblower. He said the decision by the Employment Relations Authority was good news and proof the new legislation was doing its job.
He said previous cases of whistleblowing in New Zealand had not been well-handled, referring to two high-profile cases: Allan Halse, who blew the whistle on allegations of widespread bullying at Hamilton City Council in 2013; and Ana Shaw, who made claims of fraud and bullying at Tauranga Hospital.
He said that he, and countries with whistleblower protection moves in the works, would be watching the substantive hearing with interest, to see if Communication and Training Service Limited was found to have acted in retaliation.
Australian whistleblower on trial
In Australia the topic of whistleblowing is front of mind with this week marking the start of David McBride’s trial.
McBride, a former military lawyer who served in the Australian army, leaked secret information about war crimes to journalists.
Known as the ‘Afghan Files’, the reports were later verified by the Brereton Report.
McBride has pleaded not guilty to five charges, which relate to his leaks to the media. These include the unauthorised disclosure of information, theft of Commonwealth property and three counts of breaching of the Defence Act.
Australia Human Rights Law Centre senior lawyer Kieran Pender said the case would have a huge impact on prospective whistleblowers not just domestically, but in New Zealand where the case would be watched closely.
“It has a huge chilling effect on whistleblowing. That’s really bad for our democracy, and I see that firsthand. I know that these cases are discouraging people from speaking up.
“And I guess that puts me in a position of worrying about what don’t we know? Because people are not speaking up … What isn’t leading to Royal Commissions and front pages, and accountability and justice because people are afraid, and rightfully afraid.”
He said there was a huge power imbalance when it came to whistleblowing and New Zealand’s new law went some way to try to address it, but it would still be a factor in people choosing whether to expose wrongdoing.
“You’ve got an individual against often a large employer or the government, there’s a huge financial power imbalance, access to lawyers, access to documents, access to materials, which the laws are slowly beginning to address, we’re seeing reverse-onus provisions that mean it’s up to the employer rather than the whistleblower to prove that the retaliation wasn’t linked to the whistleblowing.
“We’re seeing more and more around the world the establishment of whistleblower protection authorities, legal aid-style funding for whistleblowers, and I think it all goes to this power imbalance and the critical need to level the playing field.”
