Monday, 1 July 2019

If you are a senior manager, are responsible for company wellbeing and culture, financial governance or have staff reporting directly to you, then it’s likely you’ll have to deal with a whistleblower complaint at some point in the future.

 It could be a simple case of fraud, misappropriation or a behavioural complaint that you are able to swiftly address, or it could be a complex issues that unearths systemic problems within the organisation that requires a more long-term and thorough investigation to rectify.

 In any case, there is a distinct set of steps that should be followed so that the matter — whether it be a one-off fraud case or a deep-seated systemic issue within the organisation  — is dealt with to the satisfaction of the aggrieved or notifying party, while ensuring the continued viability of the company.

From July 1, Australian companies will be obliged to give protection to whistleblower employees, and have been given until the end of 2019 to institute a compliant and comprehensive whistleblower policy.

Failure to comply will be a criminal offence, and there are tough civil and criminal penalties for disclosing the identity or victimising a whistleblower. Furthermore, whistleblowers can sue their employer for compensation if they suffer detriment.
These new laws should act as a sufficient motivation to compel corporate Australia to institute a rigorous whistleblower action plan.

However, there is no reason to be unduly alarmed at the scale of the new legal framework. If you follow the following steps, you will be putting yourself and the company on a strong footing to abide by any legal obligations arising from a whistleblower complaint.

1. Get all the information you can from the whistleblower

Often it’s not possible to control the mode of communication that the whistleblower uses, so if a call comes in, make sure to get as many details as possible on the spot. It’s obviously impossible to extract additional information from an email complaint, but if you have the whistleblower on the line, you can ascertain the allegation/s in as much detail as possible, who was involved, the dates of the incidents, and any need for anonymity moving forward for the whistleblower.

2. Establish a communication channel with the whistleblower

This is of the utmost importance as you will need to ensure the whistleblower feels their concerns are being heeded, while you gather the necessary information to progress the complaint. A whistleblower who feels listened to is also less likely to take their concerns public and escalate an issue that could have been handled internally.

Of course, the whistleblower may wish to remain anonymous and in that case, it’s important to think about how you would establish an open communication channel, such as an anonymous email account, when drafting your whistleblower policy.

3. Conduct a preliminary assessment of the complaint

In order to complete this preliminary assessment, you will need to be properly resourced with an adequate team. As most companies lack the requisite internal resources, you may wish to consider seeking external help to triage the complaint and determine the substance to the allegations on first blush.

It’s also important to consider the parties connected to the allegations and ensure there is no conflict within the investigative team. Make sure you have a protocol regarding reporting lines and amendments to the reporting process should the complaint relate to a staffer usually tasked with responding to such allegations. This will ensure the reporting team is wholly independent.

4. Set up clear investigation procedures

Not only should you establish reporting lines for the investigation team, but you should also go to great lengths to ensure the protection of the whistleblower and those that may be interviewed during the investigation process.

Ensure complete confidentiality of the details of the allegations and individuals named, but, most importantly, keep detailed records and notes of conversations and interactions in relation to the complaint.

This will come in handy if the allegations proceed to a criminal level or internal investigators are brought in.

5. Ensure objectivity

The clear thread uniting all of these steps is the importance of objectivity. Once you are made aware of a whistleblower complaint, you should refrain from taking sides, playing judge or jury, or making assumptions based on personal opinions, or indeed, expressing your personal thoughts to the whistleblower.

In my many years of working with companies facing whistleblower complaints, the organisations that thrived in the long run were those able to deal with the allegation with a cool head, and follow a rigorous and transparent process.

Naturally, one of the clear advantages of the new whistleblower laws, whether you agree with their specific requirements or not, is that they compel Australian companies to prepare for allegations that have the potential to ruin their reputation and business, while addressing any internal issues or cases of fraud.

And that can only be a good thing.