Section 8 - Managing the welfare of the discloser
8.1 Commitment to protecting disclosers
The Department is committed to the protection of genuine disclosers against detrimental action taken in reprisal for the making of protected disclosures. The protected disclosure coordinator is responsible for ensuring disclosers are protected from direct and indirect detrimental action, and that the culture of the workplace is supportive of protected disclosures being made.
The protected disclosure coordinator will appoint a welfare manager to all persons who have made a protected disclosure. The welfare manager will:
- examine the immediate welfare and protection needs of a person who has made a disclosure and, where the discloser is an employee, seek to foster a supportive work environment;
- advise the discloser of the legislative and administrative protections available to him or her;
- listen and respond to any concerns of harassment, intimidation or victimisation in reprisal for making disclosure;
- keep an accurate record of all aspects of the case management of the discloser including all contact and follow-up action; and
- ensure the expectations of the discloser are realistic.
All employees will be advised that it is an offence for a person to take detrimental action in reprisal for a protected disclosure (s.19). The maximum penalty is a fine of 240 penalty units ($24,000) or two years imprisonment or both. The taking of detrimental action in breach of this provision can also be grounds for making a disclosure under the Act and can result in an investigation.
Detrimental action includes:
- causing injury, loss or damage;
- intimidation or harassment; and
- discrimination, disadvantage or adverse treatment in relation to a person’s employment, career, profession, trade or business (including the taking of disciplinary action);
- threats of detrimental action.
8.2 Keeping the discloser informed
The protected disclosure coordinator and the discloser will determine a mechanism to ensure the discloser is kept informed of the matter. The discloser will be informed of the objectives of an investigation, the findings of an investigation, and the steps taken by the Department to address any improper conduct that has been found to have occurred. The discloser will be given reasons for decisions made by the Department in relation to a protected disclosure. All communication with the discloser will be in plain english.
8.3 Occurrence of detrimental action
If a discloser reports an incident of harassment, discrimination or adverse treatment that would amount to detrimental action taken in reprisal for the making of the disclosure, the welfare manager will:
- record details of the incident;
- advise the discloser of his or her rights under the Act; and
- advise the protected disclosure coordinator or Secretary of the detrimental action.
The taking of detrimental action in reprisal for the making of a disclosure can be an offence against the Act as well as grounds for making a further disclosure. Where such detrimental action is reported, the protected disclosure coordinator will assess the report as a new disclosure under the Act. Where the protected disclosure coordinator is satisfied that the disclosure is a public interest disclosure, it must be further investigated by the Department.
8.4 Disclosers implicated in improper conduct
Where a person who makes a disclosure is implicated in misconduct, the Department will handle the disclosure and protect the discloser from reprisals in accordance with the Act, the Ombudsman’s guidelines and these procedures.
The Department acknowledges that the act of disclosing should not shield disclosers from the reasonable consequences flowing from any involvement in improper conduct. Section 18 of the Act specifically provides that a person’s liability for his or her own conduct is not affected by the person’s disclosure of that conduct under the Act. However, in some circumstances, an admission may be a mitigating factor when considering breach of the code of conduct action.
The Secretary will make the final decision on the advice of the protected disclosure coordinator as to whether breach of the code of conduct proceedings will be taken against a discloser. Where action relates to conduct that is the subject of the persons disclosure, any breach of the code of conduct action will only be taken after the disclosed matter has been appropriately dealt with.
In all cases where breach of the code of conduct action is being contemplated, the Secretary must be satisfied that it has been clearly demonstrated that:
- the intention to proceed with breach of the code of conduct action is not related to an underlying factor by the making of the disclosure (as opposed to the content of the disclosure or other available information);
- there are good and sufficient grounds that would fully justify action against any non-discloser in the same circumstances; and
- there are good and sufficient grounds that justify exercising any discretion to institute breach of the code of conduct action.
The protected disclosure coordinator will document the process including recording the reasons why the Secretary has determined further action is being taken, and the reasons why the action is not in retribution for the making of the disclosure. The protected disclosure coordinator will clearly advise the discloser of the proposed action to be taken, and of any mitigating factors that have been taken into account.
Continue to Section 9 - Managing the Person who is subject to the disclosure