Failure to appropriately apply Protected Disclosures Act
The complainant made protected disclosures about health and safety issues in her workplace – she left the job after the employer found her disclosures to be serious misconduct - employer reported it to professional body - body found she did not meet professional standards for making the disclosures and put conditions on her practicing licence - Chief Ombudsman found that the body acted unreasonably and potentially unlawfully – the body apologised, reversed its decision, and undertook a comprehensive process review to the satisfaction of the complainant
The complainant was employed as a licenced professional in a private sector organisation. In the course of her work, she believed that her employer was failing to comply with a number of regulations governing the profession, including health and safety regulations. After unsuccessfully raising the regulatory breaches with management, she made disclosures to several government agencies tasked with administering the relevant regulations. As a result, a number of regulatory breaches were found to have occurred, and the employer had their licence downgraded and was required to take various remedial actions.
The complainant’s employer learned that she had made disclosures, and determined that her action in disclosing the matters to external agencies was serious misconduct in breach of her employment contract. This prompted the complainant’s resignation.
The complainant’s employer then notified the licencing and disciplinary body that regulated the complainant’s profession. It recommended that the complainant be subject to disciplinary procedures, and that restrictions be put on her professional licence to restrain her from making similar disclosures in the future.
The professional licencing and disciplinary body proceeded to investigate the matter. As a result of the investigation, it determined that the complainant did not meet the relevant standards of the profession as they related to communication and collaboration. It found that she should not have made external disclosures, and should instead have been more ‘collegial’ in addressing the issues. This was in spite of acknowledging that the complainant acted in good faith and considered the matters urgent. The complainant’s alleged professional shortcomings resulted in a determination by the professional body to place restrictions on her practicing licence.
The complainant subsequently complained to the Chief Ombudsman. Her complaint, which was notified to the body, was that she should have received the protections of the Protected Disclosures Act, that it was unfair for the professional body to determine that she did not meet the standards of the profession, and that her livelihood had been adversely impacted as she was unable to secure employment.
Following assessment of the relevant documents and a report by the professional body, the Chief Ombudsman formed the provisional opinion that the professional body had acted unreasonably in the manner in which it had dealt with the matter.
In forming that provisional opinion, the Chief Ombudsman noted that the Protected Disclosures Act confers immunity from civil, criminal or disciplinary proceedings on a person who makes a protected disclosure, and that the Human Rights Act provides that no person can treat a person unfavourably for having made a disclosure under the Protected Disclosures Act. Against that backdrop, the Chief Ombudsman’ provisional opinion was that the professional body had, in its investigation, acted unreasonably in a number of respects, including by failing to consider the effect of the Protected Disclosures Act.
The Chief Ombudsman also noted that the body had potentially acted unlawfully under the Human Rights Act by putting restrictions on the complainant’s professional practice for having made disclosures.
The professional body was very receptive to the provisional opinion and fully accepted that there had been shortcomings in its processes. It advised that it considered the investigation to be an opportunity for it to make systemic changes. It noted that it was engaging external counsel to comprehensively review its processes to ensure that subsequent investigations were procedurally fair. In particular it agreed to amend its processes to ensure that they appropriately address the Protected Disclosures Act, comprehensively consider and weigh evidence, and comply with natural justice.
By way of individual remedy, the body undertook to apologise to the complainant, discontinue its investigation into the matter and reverse its decision to put limitations on the complainant’s professional practice.
The Chief Ombudsman commended the professional body for its frank acknowledgement of the shortcomings in its handling of this matter, and comprehensive undertaking to remedy the matter and review its processes. The complainant expressed satisfaction with the outcome, so the investigation was discontinued as resolved.
The complainant subsequently advised the Chief Ombudsman that the agency had held a hui to explain to her the improvements that it had made to its processes as a result of the external review. She advised that she ‘felt the hurt lift from me’, that she considered the revised processes to be extremely good and an exemplar for other agencies, and that she believed that implementation of the policies would mean that none of her professional colleagues would face the harm that she faced.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.