Updated: Oct 9, 2019
Section 17 of the Protected Disclosures Act 2000 provides that an employee who makes a protected disclosure of information under that Act, and who suffers retaliatory action from his or her employer, may have a personal grievance under s 103(1)(a) or (b) of the Act for unjustifiable dismissal or disadvantage because of some action by the employer.
The Protected Disclosures Act (PDA) allows employees in public and private sector organisations to disclose serious wrongdoing in their organisation, without fear of suffering any adverse consequences. If an employee does suffer serious consequences, the PDA provides that he or she may have grounds to bring a personal grievance. Serious wrongdoing includes (s 3, PDA):
unlawful, corrupt or irregular use of public funds
acts or omissions prejudicial to public health and safety or the environment
acts or omissions prejudicial to the maintenance of law
acts or omissions by a public official that are oppressive, improperly discriminatory, or grossly negligent or that constitute gross mismanagement.
The protections afforded by the PDA apply even if the employee is mistaken about the wrongdoing so long as he or she believed on reasonable grounds that the disclosure is about serious wrongdoing. Similarly, a disclosure does not fail to be protected because of a technical failure to comply with the requirements of the PDA. Amendments made in May 2009 gave the Ombudsmen the role of advisor for employees needing assistance in understanding what the PDA requires and the protections it gives. (Ombudsmen have other powers under the Act once a disclosure has been made.)
An employee must disclose information according to the published internal procedures of an organisation (s 7, PDA) or to the head of the organisation if there are no established procedures. If disclosure to the head of the organisation is not appropriate, other avenues for disclosure are provided.
Public sector employers must establish and publish internal procedures for reporting serious wrongdoing (s 11, PDA). Private sector employers may establish such procedures but are not required to do so.
If an employee (as defined in the Employment Relations Act) makes a protected disclosure of information and suffers retaliation from his or her employer, he or she may have a personal grievance for the purposes of s 103(1)(a) of the Act for unjustifiable dismissal, or s 103(1)(b) of the Act for unjustifiable disadvantage in employment (s 17 PDA). Section 18 of the PDA provides that a person making a protected disclosure of information (even if the disclosure breaches any contract, statute or rule of law) is immune from criminal or civil proceedings that might otherwise result from the disclosure.
In Maoate v Allied Investments Ltd  NZERA Auckland 368, the Employment Relations Authority ruled that an employee could not claim protection under the PDA for comments she had made to a newspaper about the conduct of her employer. The Authority said it was fair and reasonable for the employer to dismiss the employee for serious misconduct.
An employee who suffers retaliation may also have a cause of action under the Human Rights Act 1993. Section 66(1)(a) of the Human Rights Act provides that it is unlawful for any person to treat or threaten to treat any other person less favourably than he or she would treat other persons in the same circumstances because that person, or an associate or relative of that person, has made a protected disclosure or intends to make such a disclosure.
In Koroi v Excell Corporation Ltd ERA AA 19/09, 21 January 2009, an employer’s abject failure to properly facilitate an employee’s return to work after she had made a protected disclosure statement entitled the employee to $3,600 compensation for unjustified disadvantage. The Authority noted that the far North was a close-knit community and that the matter had been the subject of rumour and discussion and said it was particularly important in the circumstances that the employer make every effort to ensure the employee’s return to work was as smooth as possible. Instead, the employer demoted the employee and took away use of the company car and required the employee to work different hours.
The agency to which wrongdoing is reported has responsibilities to protect the identity of informants from unwarranted disclosure.
Reproduced with permission of Wolters Kluwer NZ