Case note: Protecting a whistleblower’s identity is paramount, except when ….


KEY TAKEAWAYS

Understand

• the differences between laws governing public and private sector whistleblower disclosures
• limited exceptions permit disclosure of a whistleblower’s identity, such as when a complainant consents, or under certain Public Interest Disclosure (PID) laws for procedural fairness reasons

Achieving the dual priorities of procedural fairness and protecting a whistleblower’s identity during a workplace investigation is a delicate balancing act that sometimes tips too far one way, as demonstrated by this recent Fair Work Commission decision.

Whistleblower secrecy – PID v Corporations Act protections

In a recent unfair dismissal decision¹, the Commission highlighted how the rules for protecting a whistleblower’s identity differ depending on whether the protections flow from the Corporations Act 2001 or public sector PID laws.

The case involved three TAFE NSW employees claiming they were unfairly dismissed after a complaint was made alleging conflicts of interest in connection with some new hires.

After considering the evidence, the Commission found the dismissals were unfair and ordered the reinstatement of the employees.

Investigation flaws

In finding that the dismissals were unfair, the Commission found procedural flaws in the investigation that led to the dismissals, including that:   

• the investigation findings relating to conflicts of interest were largely not supported by the evidence
• the investigation took 18 months to complete (where internal guidelines provided for 18 weeks and the matters under investigation were not complex)
• the decision-maker failed to critically review the report findings, instead accepting them as if there was no other choice.

TAFE had determined that the complaint was a protected interest disclosure under the relevant NSW PID legislation. TAFE’s guidelines provided that for protected disclosures, the whistleblower’s identity is only revealed if essential for procedural fairness.

Balancing confidentiality and procedural fairness

Two key procedural criticisms made by the Commission related to TAFE’s apparent efforts to protect the discloser’s identity:

1. TAFE redacted materials given to the respondents to protect the identity of the complainant and others. The Commission considered that TAFE’s Guidelines did not justify the extent of redactions made to materials and found the redactions went well beyond protecting the identity of the complainant.
2. On the facts of this case, the Commission considered that revealing the identity of the complainant was essential for the respondent to have a fair chance to respond.

For those used to complying with the whistleblower secrecy provisions of the Corporations Act, these criticisms may come as a surprise. They highlight a key difference between PID and Corporations Act whistleblower protections when it comes to protecting the whistleblower’s identity.

• Under the Corporations Act protections, it is an offence to disclose the identity of the whistleblower or information likely to lead to their identification unless a specific exception applies (such as the whistleblower consenting to the disclosure).²  There is no general exception for revealing a whistleblower’s identity based on it being ‘reasonably necessary for purposes of investigation’.
• In contrast, under the PID regime in NSW (relevant to this case), it is not a criminal offence to disclose a whistleblower’s identity or information likely to identify them. Importantly for investigations, the exceptions permitting disclosure of a whistleblower’s identity include not only where the whistleblower consents, but also where ‘the disclosure of the identifying information is necessary to deal with the disclosure effectively’ or where disclosure is necessary for a person whose interests are affected by the disclosure.³

Navigating the grey

This case highlights that during a workplace investigation governed by PID whistleblower provisions, a careful assessment is required as to whether the primary obligation to keep a complainant’s identity confidential would prevent procedural fairness from being afforded to the respondent. Where the Corporations Act applies, there is no discretion to exercise as the duty to keep the whistleblower’s identity secret must be complied with regardless of the procedural consequences (unless a statutory exception applies).

Organisations operating under PID provisions should be careful to avoid blanket reliance on the need to protect a whistleblower’s identity over the need to adequately inform a respondent of the allegations against them.

¹ Kildey & Ors v TAFE [2024] FWC 383 (13 February 2024).
² Corporations Act 2001 (Cth), s 1317AAE.
³ Public Interest Disclosures Act 2022 (NSW), s 64.

More information

Q Workplace Solutions Senior Investigator and Practice Leader Kerryn Tredwell will share her more than 20 years’ experience in employment law and workplace investigations at a Q Workplace Training online workshop, Investigating Whistleblower Complaints in the private sector, on 8 May 2024.