Whistleblowers are becoming more and more a fact of life in business and government. You need to consider how you should manage a whistleblower in your organisation.
With the push for transparency and improved ethics in business it is a given that more employees will feel the need to expose what they see as illegal or unethical business.
In addition, a new Australian Standard has been introduced to provide practical guidance for employers and managers, and to assist and protect whistleblowers from reprisals or unfair attacks.
In the past, whistleblowing often meant the end of a career within an organisation or even an industry. Branded as traitors, troublemakers or malcontents, the individuals who believed they were acting in the public interest by disclosing malpractice felt the full weight of reprisals by executives and colleagues.
However, today it is generally accepted that the whistleblower, if managed effectively, can play a pivotal role in both improving the day-to-day management of an organisation and its good governance. The key is management. Business can face disastrous consequences to their reputation and brand if a whistleblower accusation is not managed in a timely and positive manner.
Bruce Arnold, Director of Australian Internet research, analysis and strategies consultancy, Caslon Analytics, says “whistleblowing within private sector organisations is like rape: most of it is publicly unreported and although many people know someone who’s been affected, statistics are uncertain and most accounts are anecdotal”.
Arnold says managers of all levels handle whistleblowing in different ways; depending on the nature of the concern and the manager’s perspective.
“Responses are similar to those regarding sexual harassment. Some managers handle whistleblowing badly through commission or omission, for example they don’t investigate complaints and condone reprisals. Others use money (or legal action) to make the ‘problem’ disappear – whether that’s the whistleblower or the subject of complaint. Others quietly make changes on a systemic or incidental basis.”
Arnold says directors and executives have responsibilities under corporations law and other legislation, encompassing effective reporting within organisations and to other entities; for example Australian Securities and Investments Commission (ASIC).
He says it is probably most effective to practice good governance rather than encouraging ‘informers’ or ‘dobbing’ within the organisation.
“If you are a manager and your communication systems haven’t detected malpractice, you need to know. If your organisation is knowingly engaged in malpractice, you need to assess the risks that it is going to feature in a fax to The Financial Review, APRA, EPA, ACCC, ICAC or ASIC,” Arnold says.
Professor Bob Baxt, a Partner at leading Australian law firm Allens Arthur Robinson says managers should ensure that there are internal mechanisms in place to encourage discussion of any concerns or problems within the company. He says if internal mechanisms prove unsuccessful, employees and officers of the company should be given the opportunity to make disclosures to external sources.
The national standards body, Standards Australia has recently overseen the creation of an Australian Standard for whistleblowing; the AS 8004. Effective from July last year, the Australian Standard – AS 8004 – was developed over a 12-month period as part of a five-part series of documents that outline a sensible framework for good governance.
The creation of the Australian Standard involved input from a range of organisations and government agencies including: The Australian Chamber of Commerce and Industry; Australian Federal Police; Australian Institute of Company Directors; and Australian Institute of Risk Management. More than 800 further comments from other organisations and individuals were considered by the committee through a public consultation process.
Mark Bezzina, General Manager Business Standards and Director of the National Centre for Security Standards at Standards Australia says the Australian Standard stipulates that any person exposing reportable conduct must not be personally disadvantaged and this includes actions such as dismissal, demotion, any form of harassment, discrimination or current or future bias.
According to Bezzina, the policy should include a clear statement of an organisation’s commitment to comply with application laws and practices, including the Australian Standard, and provide clear mechanisms by which complaints can be made such as a Whistleblower Hotline.
The Standard says if a whistleblower claims to have been discriminated against then they should have the automatic right of appeal through an independent appeals body. Bezzina suggests that managers take some time to read through the series of Australian Standards on good governance and whistleblower protection.
“As with all standards in the management and business area, they were developed to provide managers with the information they need to help tackle day-to-day issues. Standards Australia also offers a range of training courses around the standards that enable managers to gain further insights from the industry experts who help draft the guidelines.”
Bezzina and Standards’ Public Affairs Director, Tom Godfrey agreed that “if Australian managers are committed to following the Australian Standard and implement a whistleblower protection program effectively, staff should feel confident about expressing any concerns they may have about an organisation”.
Bezzina says the willingness of management to face and effectively address such issues in a trustworthy manner, will lead to an effective whistleblowing system that can lead to continual improvement within an organisation.
“For example, an organisation that proactively handles complaints against it stands to learn a great deal about its products and level of service.
Therefore, by handling the complaint or feedback effectively an organisation can generate efficiency and productivity gains and, in some cases, a reduction in costs,” Bezzina said.
In a paper titled, Australian Standard on whistleblowing, by Associate Professor Dr Peter Bowden, from the University of Sydney’s Department of Philosophy, he states that the AS 8004 is a major advance in strengthening ethical behaviour in Australian organisations, “but it needs much more work”.
Dr Bowden says that whistleblower support groups will welcome that whistleblowing is now a legitimate recognised activity, but they will argue that AS 8004, although a major advance, “has several weaknesses; most important is whether it will work”.
He says the Standard also requires an expansion to further define what is unacceptable conduct.
“It also needs to introduce more rigorous and independent steps to ensure that whistleblowers not only can speak out without reprisal, but that institutional and corporate mechanisms are established that ensure that their speaking out results in benefit to the public,” Dr Bowden said.
Arnold says the Standard is one step forward, but it is voluntary: aspirational rather than law. It does not provide legal protection that overrides contract or other law that inhibits action in the public interest, for example disclosure of corruption or other malpractice.
Professor Baxt says the new Standard is a useful tool for companies wishing to introduce a whistleblower protection policy as it provides “a reasonably comprehensive guide to establishing and managing such a policy”.
He says if adopted widely, the Standard may encourage companies and the public more broadly to view whistleblowers with greater sympathy and acceptance.
“However, the effect of the Standard itself will inevitably be limited as it is not a legislative measure. Therefore, it does not offer legal protection to whistleblowers, and companies are under no obligation to adopt it.”
However, International Director of Whistleblowers Australia, Dr Brian Martin, says based on talking with hundreds of whistleblowers, plus his own examination of research, he is sceptical about formal procedures for protecting whistleblowers.
Dr Martin says the essential steps that businesses, and SMEs in particular, need to take in order to manage whistleblowers, “is to deal with the complaint, rather than focusing on the complainant”.
While not wanting to criticise the motivations of those who develop whistleblower standards and laws, Dr Martin says that the new Australian Standard on whistleblowing is “not a great step forward” in protecting whistleblowers against reprisal when they report wrongdoing by their employer or their colleagues. He said “these sorts of protection seldom work” and are not “the most effective way to protect whistleblowers”.
This view is also developed in Dr Martin’s paper Illusions of Whistleblower Protection. Dr Martin, who is also an Associate Professor at the University of Wollongong’s School of Social Sciences, Media and Communication, says there are relatively few private sector whistleblowers “because most employees realise that speaking out could end their employment. But public sector whistleblowers are not all that much better off”.
Dr Martin agrees that organisations should appoint an independent whistleblower protection officer and an investigations officer, but will only start doing this “when the consequences of not doing it are worse than doing it”.
He says some Australian managers are very good at dealing with whistleblower incidents, while some are very bad, and most never have to deal with a serious whistleblowing case. He suggested managers can improve their performance by reading about whistleblowing and talking to whistleblowers.
Susannah Downie, also at Allens Arthur Robinson, says the most effective way for SMEs, and larger businesses alike, to deal with whistleblowers is to implement a whistleblowing policy that is appropriate for the business and its environment and be promoted and communicated to employees.
“This can impact on both the willingness of employees to disclose problems and the ability of the company to deal with disclosures,” Downie says.
Bruce Arnold, Director, Caslon Analytics says most whistleblowing in SMEs does not get media attention and often doesn’t get any public exposure as problems that occur are dealt with behind closed doors. He says information about many SME cases is anecdotal, but provided the following examples:
- A junior associate in a mid-range legal practice alerting the managing partner to a senior lawyer’s financial impropriety. The lawyer now has a corner office; the associate works elsewhere and her peers have got the message;
- An accountant working for a charity alerting the board to a senior manager’s breach of guidelines. The manager resigned after an internal investigation and now works in another sector. The general manager moved to another organisation before expiry of his contract. Compliance mechanisms have been tightened;
- A factory employee alerting one owner of the business that the other partner was diverting stock to an associate. Action was apparently taken too late: the business is in receivership; and
- An IT contractor alerting management of an SME that staff in a particular unit were sharing illegal adult content. The organisation strengthened its online access policy and installed web filters. The contractor has been recommended to potential clients for sensible handling of a difficult situation.