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In our last article, we wrote about what protected disclosures are and who can make them. In this article, we discuss the Employment Relations Authority (Authority) determination, Bowen v Bank of New Zealand, which deals with these issues.
Background of the case
The complaints
Ms Bowen worked at the Bank of New Zealand (BNZ). During the course of her employment with BNZ, she made various complaints about the conduct of two people: her direct report and her manager.
The factual matrix was complex, but the key complaint for our purposes (First Complaint) had two parts – alleged bullying by a person reporting to Ms Bowen, and the concerning business conduct of Ms Bowen’s manager. The First Complaint was investigated, and during that investigation Ms Bowen twice requested that BNZ address how it would protect her from retribution for raising these concerns.
The restructure
Following the First Complaint, Ms Bowen’s manager started making a number of changes that directly affected her team. The changes were extensive and ultimately had the effect of unwinding significant work that had been done to define and develop Ms Bowen’s team merely months before the restructure process. For example, Ms Bowen’s manager created new roles in another team which had considerable crossover with roles in Ms Bowen’s team, when the work could be done and was being done, by Ms Bowen’s team.
BNZ subsequently proposed to restructure Ms Bowen’s team, which would result in the disestablishment of Ms Bowen’s role. Ms Bowen argued that this restructure proposal was brought about by her manager through his manipulation of her team, and that he had done so in retaliation for the First Complaint.
Employment documentation
At the time of Ms Bowen’s complaints, the Protected Disclosures Act 2000 was in force (which has since been repealed and replaced by the Protected Disclosures (Protection of Whistleblowers) Act 2022). One difference between the two pieces of legislation to note is that the old Act required disclosures to be made in accordance with any internal procedures in place. The new Act still allows for disclosures to be made in this way but also provides additional methods – including for the disclosure to be made to the head or deputy head of the organisation, or to be made to an appropriate authority.
BNZ had a number of relevant employment documents in place at the time of the complaints. These documents included a code of conduct, and BNZ’s parent company’s whistleblower policy. Notably, the code of conduct did not reference the whistleblower policy, and a section of BNZ’s intranet about whistleblowing did not make it clear that employees were expected to follow the procedures set out in the whistleblower policy. The whistleblower policy itself provided three possible ways for making a protected disclosure and referred to alternative avenues for raising complaints.
The Authority’s comments regarding protected disclosures
Protected disclosures
The Authority in Bowen noted that bullying complaints are generally not protected disclosures as was the case here because Ms Bowen had not raised that concern wishing for it to be protected (which was a requirement under the old Act).
The opposite was true for the business misconduct aspect of the First Complaint, which was found to amount to a protected disclosure under the old Act.
In making this finding, the Authority rejected an argument that Ms Bowen had failed to make the protected disclosure in accordance with BNZ’s whistleblower policy. As above, it was a requirement under the old Act for disclosures to be made in accordance with internal procedures.
The Authority found that Ms Bowen had complied with BNZ’s internal procedure, but even if she had not it would only have amounted to a technical failure. That is because the Authority regarded the various employment documents as confusing and difficult for employees to navigate, and so it was not clear that BNZ did in fact have an established and operative procedure for reporting serious misconduct.
Retaliatory action
The Authority further considered that the changes affecting Ms Bowen’s team prior to the restructure proposal had no commercial basis, and that her manager had caused these changes to occur in retaliation for the First Complaint.
Key takeaways
There are a few hoops to jump through for a disclosure to amount to a protected disclosure under the Act. These include (among other things) that the discloser fits the Act’s special definition, that they believe on reasonable grounds that there has been “serious wrongdoing”, and that the “serious wrongdoing” also fits the statutory definition (which is more limited than you may initially have thought).
If a disclosure has been made in accordance with the Act, the discloser is entitled to protection which includes protection against retaliatory action – such as facing adverse consequences in their employment, like Ms Bowen faced. And finally, mistakes or technical failures do not affect a disclosure’s entitlement to protection.
The Bowen case is a timely reminder that there is something called a ‘protected disclosure’, and New Zealand has specific legislation in place that provides guidance and protection for those disclosing serious wrongdoing.
If you have any questions about protected disclosures in employment, please get in touch with our Employment Law Team or your usual contact at Hesketh Henry.
Disclaimer: The information contained in this article is current at the date of publishing and is of a general nature. It should be used as a guide only and not as a substitute for obtaining legal advice. Specific legal advice should be sought where required.
