In February and March 2018, the State Services Commission engaged with a range of organisations across the public and private sectors to learn more about the challenges people encounter under the current regime. We’ve summarised the key issues we heard below. For more information, see the Targeted Consultation Summary Report.
Problem 1: People don’t always know when to use the law
It’s confusing to know who can report concerns about suspected misconduct in their organisation – employees only? Or contractors and volunteers too?
It’s confusing to know what counts as serious wrongdoing and when someone should come forward with information.
- What if they only see a small part of something and are not sure if it is ‘serious’ enough to tell someone?
- What if they’re being bullied by their manager or co-worker – is that ‘oppressive’ behaviour under the Act or a 'serious threat to public health and safety'?
- What if they work in the private or not-for-profit sector and suspect a co-worker is misusing funds – is that covered by the Act?
It’s also confusing to know what to do if someone comes forward with a range of complaints that are covered by different pieces of workplace legislation. For example, a person may claim that their co-worker is engaging in activity that could endanger the environment, and is also harassing them. Both issues need to be resolved, but which formal process should they use – the Protected Disclosures Act, the Health and Safety at Work Act or the Employment Relations Act?
Problem 2: People are scared that they will be mistreated or lose their jobs
The Act states that a person’s identity should be kept confidential. However, this cannot be guaranteed. Sometimes it may be necessary to identify someone to help progress an investigation. Sometimes people talk and it can be easy to find out who reported on whom.
This can leave the person vulnerable to mistreatment. There is currently no legal obligation on organisations to prevent this from happening.
When it does occur, compensation can be difficult to access. Contractors, volunteers, board members and other people who are not ‘formal’ employees of the organisation can find it particularly hard to know what compensation might be available to them.
The main options – raising a personal grievance against their employer or making a complaint to the Human Rights Commission – rely on both the employer and the person who has made the disclosure voluntarily agreeing to mediation. If the employer refuses to engage, no further action can be taken.
Even when both parties agree to mediation, seeking compensation can be a long and drawn-out process because the cases are so complex. In particular, it is hard to tell whether someone was mistreated or dismissed as a result of ‘speaking up’ or because of their poor performance at work. This means cases are often left unresolved or withdrawn.
Problem 3: People don’t always know who to report concerns to inside their workplace
The Act currently only requires public sector organisations to have procedures in place for receiving and handling information about suspected wrongdoing. There are no requirements for the private and not-for-profit sectors. This means that there are huge differences in the way organisations handle allegations of serious wrongdoing.
In some large organisations, there are a range of ways to speak up. For example, some organisations have an integrity 'hotline' or a specialist team to report to.
In some small organisations, there are no internal procedures at all. People don’t always know who to report concerns to. Their line manager? What if their line manager repeatedly ignores the concern? Or what if their line manager is involved? Who should they go to then?
Problem 4: People find it hard to know which external body they can go to, and when
People usually have to report concerns inside their workplace first. This can be difficult because of the issues outlined above – what if they fear mistreatment? Or what if there are no internal procedures at all?
In these circumstances, it can be difficult to know who to go to outside their workplace. The Act lists 10 different 'appropriate authorities', but it can be confusing to know which one to go to, and when.
What we don’t know - how big the problem is.
We don’t know how many people try and use the Act because organisations are not required to collect this information.
What we do know is that only a small number of people go to the Ombudsman to seek advice and guidance on making a protected disclosure. For example, over the last five years, the Ombudsman has on average completed 10 requests for guidance and 43 informal enquiries a year in relation to Protected Disclosures.
We don’t know why this is. Is it because there is no serious wrongdoing in New Zealand? Or because people find the Act difficult to use, or are unaware of it in the first place?
This makes it hard to quantify how big the problem is and how much it affects workplaces across New Zealand.
 Ombudsman Annual Reports, 2013/14 to 2017/18