Healthy organisations always want to hear from employees with a problem. Whether the problem is an ongoing personal gripe, an incidence of bullying or a case of suspected fraud, sensible management would much prefer to have the opportunity to address the issue in its earliest stages rather than let it fester and grow in potentially damaging impact. Healthy organisations see ‘complaints’ as ‘opportunities for learning and process improvement’!
Yet, many employees find their organisation’s approach to complaint handing unclear and discouraging. Even if they have the fortitude to forensically read all relevant organisational policies, it still often remains unclear which policy umbrella their complaint falls under and how and to whom they can best make a report (particularly if their complaint is about their line manager, as is often the case).
What has changed?
Australia finally has new Whistleblower legislation: the Enhanced Whistleblower Protections Bill 2019. The new legislation establishes a consistent whistleblowing regime for companies covered by the Corporations Act and the Taxation Administration Act. This regime mirrors the regime created by the Public Interest Disclosure Act 2013 which applies to public sector organisations. The legislation:
- requires all large corporate entities to have a compliant Whistleblower policy;
- provides a definition of individuals eligible for protection;
- allows for anonymous disclosures;
- provides protections to the identity of tax and corporate whistleblowers;
- defines the persons eligible to receive a whistleblower disclosure; and
- outlines access to compensation or other remedies if victimisation occurs following a whistleblower disclosure.
While the new legislation adds clarity and important protections for potential Whistleblowers in the corporate sphere, there is also a risk that it adds another layer of confusion for employees contemplating making a workplace compliant.
What is the difference between a complaint, a grievance and a Whistleblower report?
This is a very broad way of distinguishing the three most common complaint systems run by companies:
In general (non-legal) terms, the Whistleblower policy is designed to address serious issues of misbehaviour, malfeasance or corporate crime. These are issues which it would be reasonable to think would result in dismissal or criminal charges if found to be true.
Often linked to legislation which prohibits discrimination, bullying and sexual harassment, a company’s Complaints policy will usually encourage staff to try to resolve the issue interpersonally where appropriate with a disciplinary warning system for people found to be engaging in these forms of conduct as the next step.
Grievances are separate from issues of bullying or discrimination. Grievances are usually understood to be disputes over administrative matters and management decisions– rostering, performance appraisal etc– or are matters of interpersonal conflict or miscommunication. When a grievance is lodged, the elements of the issue will be reviewed by an independent party, usually within the organisation.
In your organisation, estimate how many employees understand the differences between the three policy areas. Consider doing a straw poll with nearby staff. You might be surprised by what you find.
What’s so confusing?
Keeping these complaint types separate is never as simple as the above table suggests. Sometimes the full seriousness of an issue is not apparent when an allegation is first made.
For instance, what looks in the first instance like low-level bullying for which additional training might be the suggested solution, turns out to include criminal assault with multiple complainants; accusations of serious bullying or sexual assault is a matter for which Whistleblower protections might be available.
Similarly, someone who calls a poor performance appraisal an instance of discrimination might be leaping to an unjustified conclusion and would be better directed to a grievance system where a review of the facts would be conducted away from the disciplinary regime.
Nevertheless, in the real world, there will probably always be a good percentage of staff who retain only a vague sense of these things until, of course, they need to make a complaint!
What is of critical importance is that the person in the organisation they first turn to for advice is well aware of all the distinctions. In the case of qualifying Whistleblower reports, there are considerable penalties in play if the complaint is handled incorrectly or indiscreetly.
How do my workplace systems need to change?
At this time, the Enhancing Whistleblower Protections Bill 2019 has been passed by the Australian Parliament but has not yet received Royal Assent. The laws will either come into operation on 1 July 2019 or 1 October 2019 depending on the timing of Royal Assent. As noted, the new laws apply to proprietary companies (as opposed to public sector organisations) and only to companies which are designated ‘large’. You can find relevant definitions of large here: Australian Securities and Investments Commission.
The new Whistleblower legislation makes the protection of qualifying Whistleblowers mandatory, with substantial penalties for non-compliance. Organisations must have in place processes that guarantee confidentiality so that Whistleblowers are shielded from possible adverse actions.
In practical terms, this means severely limiting the number of people involved in processing the Whistleblower report and providing support to the Whistleblower.
The new legislation provides protections for people making qualifying disclosures. These disclosures must be made to ‘eligible recipients’ of the disclosure, which includes officers or senior managers of the company, the company’s auditors or another person or entity authorised by the company.
The benefit of simplifying processes
Undertaking the changes needed to make your organisation compliant with the new Whistleblower legislation is also an opportunity to overhaul all your complaint procedures making them consistent, logically interconnected and more widely and easily understood by all staff.
If you (wisely) intend to appoint, train and publicise a senior member of staff to be your Protected Disclosures / Whistleblower officer, please also ensure that person is fully versed in your other complaints handling processes. They may have to triage the full range of issues, from relatively trivial to criminally serious.
The benefits of adding a hotline option
As part of your overhaul, please also consider commissioning an external complaints ‘hotline’ for staff to contact. Such a service can supply staff with a neutral and confidential opportunity to articulate their issue, have complaint handling explained and be guided to relevant support services.
In the case of Worklogic’s Integrity Line, reports can be made online or by phone. All reports are forwarded for action to the person nominated by the commissioning organisation to be (what we call) their ‘Designated Officer’.
We are increasingly finding that having this first step in place affords the chance to feed reports back to commissioning organisations appropriately. Where a report might qualify for Whistleblower protections, we are able to send it straight to the appropriate person within the organisation. This guarantees a short and confidential route to Whistleblower procedures and protections.
We also note that, justly or unjustly, from the perspective of people concerned enough to be considering a formal complaint, their own managers and HR departments can appear formidable and possibly partisan. We are neither.
Seize the opportunity
The new Whistleblower legislation brings private companies up to the standards already well-established within public entities (government, councils etc) where the Protected Disclosure Act has been operating in NSW since 1994, for instance, and in other states for considerable periods as well.
Experience in the public sector shows there is nothing to be feared in the new legislation – and much to be gained when the benefits of early disclosure of malfeasance are considered.
Take the opportunity presented by the long awaited Enhanced Whistleblower Protections to assess and re-invigorate your organisation’s whole complaints handling apparatus.
About Rose Scott
As manager of Worklogic’s Integrity Line service, Rose Scott ensures that people making a workplace complaint are given a calm and secure reception. She also leads Worklogic’s policy development team, helping organisations set the standard for ethical and constructive behaviour at work. Please contact us for an obligation-free, confidential discussion to review and refresh the policies at your workplace.