Whistle-blower (Protected Disclosure) Policy
This policy provides guidance to making a disclosure of information to Golden City Support Services (GCSS), where the person wishing to make the closure (hereafter called the Whistle-blower) is seeking a level anonymity in making the disclosure (also called a protected disclosure).
Purpose
The GCSS Whistle-blower (Protected Disclosure) Policy (hereafter called the Whistle-blower Policy) is in place to –
• Assist in deterring wrongdoing
• Encourage disclosure of wrongdoing
• Provide a Whistle-blower with a protective and supportive environment where wrongdoing can be disclosed safely and securely.
The Corporations Act 2001 Cth sets out legislative requirements in regard to protected disclosure. The legislation describes –
• Who qualifies as a Whistle-blower (classes of people).
• Matters that fall under protected disclosure.
• Legal protection for Whistle-blowers.
• The handling of a protected disclosure made by a Whistle-blower.
A Whistle-blower
Certain classes of people qualify for protection as Whistle-blowers –
• A current or former officer or employee, including board members, managers, employees who are permanent, part-time, fixed-term or temporary, secondees and those on student placement.
• A supplier of goods or services, whether paid or unpaid, including current or former contractors, consultants, service providers and business partners.
• An associate, including a director or company secretary.
• A relative, dependent or spouse of an individual who is an eligible Whistle-blower as described above.
Disclosures covered by this policy
Disclosable matters (*) involve information that the Whistle-blower has reasonable grounds to suspect concerns misconduct, or an improper state of affairs or circumstances in relation to an organisation or the provision of support services provided by GCSS.
Further –
• To have reasonable grounds to suspect wrongdoing means that you, although you don’t have to proof of wrongdoing, it would be reasonable based on the information that you have, that wrongdoing has or is taking place. (Consider any objective supportive information such as emails, file notes or receipts etc.).
• Misconduct includes fraud, negligence, breach of trust and breach of duty.
• An improper state of affairs or circumstance arises where there are practices that may be legal but could indicate a systemic practice that is or could cause harm to someone.
(*) Also the Corporations Act 2001 Cth lists specific legislation that if contravened may be disclosable matter and conduct that is an offence against Commonwealth law punishable by 12 months imprisonment or that represents a danger to the public or the financial system, is also a disclosable matter.
Disclosures not covered by this policy
Issues and concerns that are not disclosable matters under the Corporations Act 2001 Cth, may fall under other legislation and that other legislation which may prescribe specific protection for disclosure or reporting. For example the “National Disability Insurance Scheme (Complaints Management and Resolution) Rules 2018 Part 2—Complaints management and resolution system for registered NDIS providers” requires that reasonable steps must be taken to ensure that a person who makes a complaint, or a person with disability affected by an issue raised in a complaint, is not adversely affected as a result of the making of the complaint, and information provided in a complaint is kept confidential and only disclosed if required by law or if the disclosure is otherwise appropriate in the circumstances and that procedural fairness must be afforded in dealing with a complaint.
This policy also does not apply to personal work-related grievances, such as concerns over employment conditions, interpersonal issues or performance management. This is because the Corporations Act does not offer protections in relation to disclosures that-
• Concern personal grievances but have no other significant implications for the organization.
• Do not relate to conduct or alleged conduct about a ‘disclosable matter’
• Do not relate to detriment or threat of detriment to the discloser.
It is however important to state that personal work-related grievance might still qualify for whistle-blower protection if the disclosed matter also contains disclosures covered by this policy.
Making a protected disclosure
At GCSS a Whistle-blower disclosure can be received by –
• Chief Executive Officer
• Chief Finance Officer
• General Manager Operations
• General Manager Customers, Resources Markets
Other positions within GCSS are required to refer a Whistle-blower seeking to make protected disclosure to any one of the above GCSS positions.
Legal practitioners can also receive disclosures that will be protected if the purpose of the disclosure was obtaining advice or legal representation in relation to whistleblowing under the Corporations Act. The disclosure is protected even if the lawyer concludes that the disclosure was not about a disclosure protected matter.
Certain Regulatory bodies and other external parties can also receive disclosures that will be protected such as, but not limited to, Australian Securities & Investment Commission (ASIC)
In certain limited circumstances you can make a disclosure of information to a journalist or a parliamentarian and still qualify for protection (#).
(#) It is important to note that protected disclosure may be lost if all the criteria for making the disclosure are not met. It is important to fully understand the criteria and seek legal advice before making a public interest or emergency disclosure.
Anonymous disclosures
You do not need to identify yourself in order for your disclosure to be protected. You can choose to remain anonymous when making the disclosure, during its investigation and after its conclusion. You may choose to adopt a pseudonym, or refuse to answer questions that could identify you.
The Your-Call website ( www.whistleblowing.com.au ) offers additional practical advice about how to preserve your anonymity.
While anonymity has advantages such as shielding you from possible curiosity or reprisals, it can be difficult to maintain. Remember that the email address and telephone number you use can enable recipients to identify you.
Anonymous disclosure can have drawbacks. For example, it could mean your involvement in an investigation is limited (your ability to furnish for example information to assist an investigation, or to provide you with feedback on an outcome).
Legal protections for Whistle-blowers
Nobody is permitted to take actions that cause detriment to a person known or suspected to be a Whistle-blower who qualifies for protection, or anyone else in relation to a disclosure. It is also illegal to threaten to cause detriment in relation to a disclosure.
Detrimental conduct includes –
• Dismissing an employee
• Injury of an employee in his or her employment
• Alteration of an employee’s position or duties to his/her disadvantage
• Discrimination between an employee and other employees of the same employer
• Harassment or intimidation of a person
• Harm or injury to a person, including psychological harm
• Damage to a person’s property or reputation
• Damage to a person’s business or financial position.
However, these protections do not grant immunity to Whistle- blowers who have themselves been involved in the misconduct.
If you think you or any other person has suffered loss, damage or injury because of a disclosure and that GCSS failed to take reasonable precautions and exercise due diligence to prevent the detrimental conduct, you can seek compensation and other legal remedies through the courts. You should obtain your own legal advice about this issue.
Handling and investigating a disclosure.
GCSS will attend to all disclosures reported to it as soon as practicable.
The following steps will be undertaken in each instance –
a. If a person approaches any staff member at GCSS to request to make a protected disclosure, the GCSS staff member will advise the person to contact any of –
Chief Executive Officer CEO.WB@gcss.org.au 61 3 54342777
Chief Finance Officer CFO.WB@gcss.org.au 61 3 54342777
General Manager Operations GMO.WB@gcss.org.au 61 3 54342777
General Manager Customers, Resources Markets GMC.WB@gcss.org.au 61 3 54342777
b. The staff member will also advise the person that a copy the GCSS Whistle-blower (Protected Disclosure) Policy can be found on the GCSS website (www.gcss.org.au) or by telephoning 61 3 5434 2777.
c. Any of the senior executives listed in “a” above can receive a request from a person seeking to make a protected disclosure. If other than the Chief Executive Officer receives the request the executive will make know to the person that information gained in the initial contact will be passed on to the Chief Executive Officer to manage the protected disclosure request. If the person wishing to make a protected disclosure makes it known that they believe reporting the disclosure to the Chief Executive Officer will compromise the information or compromise any pending follow up action or investigation, then the executive taking the protected disclose request will advise that the request for disclosure will be advised to the Chair of the Board of GCSS.
d. The Chief Executive Officer (hereafter to be also read as Chair of the Board of GCSS in certain circumstances described in “c” above) must first decide if the request qualifies for protected disclosure. The Chief Executive Officer will directly advise the person seeking protected disclosure of the outcome of that decision. If the person seeking to make the protected disclosure does not agree with Chief Executive Officer’s decision the person may seek independent legal advice. The Your-Call website (www.whistleblowing.com.au ) may also offer additional practical advice.
e. The GCSS handling of a protected disclosure will be undertaken in accordance with requirements under the Corporations Act 2001 Cth which is laid out as GCSS internal work instruction Incident Reporting & Management & Protected Disclosure (W0495). The work instruction prescribes the following steps –
i. Decision making as to if a disclosure qualifies as a protected disclosure.
ii. Deciding if the person making the disclosure should be referred to any other resources or services.
iii. Setting out the nature and scope of an investigation into the alleged wrongdoing.
iv. Establishing if an investigation needs to be suspended or halted if it is likely to interfere with another investigating jurisdiction (such as matters that may fall under the Crimes Act 1958 Vic.).
v. Establishing whether an investigation will be conducted by an external or internal person.
vi. Establishing with the investigating person a process of procedural fairness within the scope of what information the person making a protected disclosure is choosing to make available for the investigation.
Without the consent of the Whistle-blower GCSS cannot disclose information that is likely to lead to the Whistle-blower’s identification as part of the investigation process. When reasonably necessary for the purpose of the investigation it can only disclose information that does not include your identity or identifying details such as employee number, position title or email address.
Fair treatment of individuals mentioned in a disclosure
Notwithstanding; that a Whistle-blower may or may not consent to GCSS disclosing certain information that is likely to lead to the Whistle-blower’s identification as part of the investigation process; GCSS is required to, at all times, apply procedural fairness to all parties in dealing with allegations of wrongdoing, including allegations that arise under this Whistle-blower policy. The GCSS internal work instruction Incident Reporting & Management & Protected Disclosure (W0495) sets out the application of procedural fairness.
Reporting on outcome of an investigation raised under protected disclosure
GCSS will inform the person raising an allegation of wrongdoing (in writing) of an outcome of an investigation to the level that GCSS decides is appropriate to the circumstances of the matter of wrongdoing that has been investigated.
The circumstances of an individual investigation may mean that it would not be appropriate for GCSS to provide details of the outcome to the person making the disclosure, such as, but not limited to, circumstances where another person is put at risk.
Notwithstanding anything in this policy; there may be a legal requirement for GCSS to report a disclosure to a regulator or the police, that regulator or police will follow its own investigation procedure.