Best practice whistleblowing practices – learnings from the APSAC conference

Posted by on Nov 6, 2019

Last week I attended the 7th Australian Public Sector Anti-Corruption Conference. Given the  changes to the private sector whistleblowing legislation this year, I was particularly interested in the two sessions regarding the risks and best practice for managing whistleblowing complaints.

First up was Professor A J Brown and Ms Jane Olson who are two of the authors of ‘Clean as a whistle – a five step guide to better whistleblowing policy and practice in business and government’. This research has uncovered that in most scenarios, staff concerns cannot be neatly separated into a public interest complaint or a personal workplace related grievance. A mixture of public interest and private workplace issues can be raised in a single report. This research confirms what many have experienced – it is extremely difficult to separate out a personal grievance at work from a wider, public interest grievance.Where these complaints are intermixed, the research demonstrates that the outcomes for complainants worsens.

Miscategorising a ‘mixed’ complaint as merely a personal grievance can result in organisations failing to identify, assess and respondto reports appropriately. The research demonstrated that for mixed complaints, the investigation of the complaint was considered to be less competent in the complainant’s eyes. Ms Olsen also cited a case study involving a 16 page employee complaint that mainly concerned bullying allegations, but included some claims of nepotism. This complaint was sent directly to the subject of the allegations, and the complainant suffered detriment as a result.

Given the amendments to the private sector whistleblowing legislation, all private sector organisations will also need to consider whether grievances that appear to be solely personal are actually a mixed complaint of personal grievances and public interest disclosures. In all cases, Professor Brown and Ms Olson recommend carrying out a robust risk assessment as soon as wrongdoing is reported. Where risks are assessed at the outset, and an organisation considers what could go wrong for a complainant, the data demonstrates that a complainant receives better treatment from managers and colleagues.

In the next session, Mr Chris Wheeler PSM went on to discuss the human factors that impact the treatment of whistleblowers and how this impacted the level of protection that a whistleblower may receive. He shared several anecdotes where senior managers took overt action against whistleblowers that was not justified on the evidence. He considered that a key reason for this was that these managers, like all of us, are impeded by cognitive biases. This is true even where managers are aware of the relevant Public Interest Disclosure (PID) legislation and its obligations.

For example, he noted that in a situation with an existing conflictm between an employee and a manager where numerous complaints had been made, negative attitudes were entrenched before any PID was made. If this employee were to make public interest allegations, the manager could conclude that this employee was just a troublemaker and their PID complaint was therefore groundless. By falling victim to confirmation bias, this manager is likely to fall afoul of their PID obligations by failing to properly investigate the PID allegation.

As Justitia regularly presents training on unconscious bias, as well as whistleblowing, for organisations, it was interesting to hear how unconscious biases also can be damaging for organisations who are required to deal with PIDs in accordance with relevant legislation.